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AN EXHIBIT 

or THE 

LOSSES SUSTAINED 

AT THE 

©OTTOS @SP MBOOTOffl ARID ©STOSS^ 

BALTIMORE, 

UNDER THE ADMINISTRATION OF 

JAMES A. BUCHANAN, PRESIDENT, 

AND 

JAMES W. M'CULLOH, CASHIER; 

OOMPILED BY THE PRESIDENT AND DIRECTORS OF THE OFFICE AT BALTIMORE, 
IN PURSUANCE OF AN ORDER FROM THE 

PRESIDENT AND DIRECTORS 

OF THE 

BANIC OF THE UNITED STATES: 

TO WHICH IS APPENDED 
OF THE 

COJVSlPIRJlCY CASES, 

TRIED AT HARFORD COUNTY COURT IN MARYLAND. 



BALTIMORE; PRINTED BY THOMAS MUBPH?, 

1823. 



A 



i*\ 



# 



-~ 



AN EXHIBIT, &c. 



IN conformity to the resolution of the Board of Directors of the 
Bank of the United States, of the 26th of November, 1822, con- 
tained in page viii. of the advertisement to this volume, the follow- 
ing documents were previous to publication submitted to that board : 
who adopted the subjoined resolution, viz : 

At a meeting of the President and Directors of the Bank of the 
•United States on the 8th of July, 1823, the following resolution 
was adopted, 

Resolved — That the publication of the documents transmitted 
from Baltimore, be, and the same is hereby sanctioned and approved. 
Extract from the minutes, 

(Signed) THOMAS WILSON, Cashr. 

It is deemed proper also to prefix the following proceedings of 
the Parent Board, as containing their opinions at an early period, 
of the nature of the transactions detailed in this volume — opinions 
which the result has too well justified, 



At a meeting of the President and Directors of the Bank of the 
United States, on the 2d of July, 1819, the following preamble and 
resolutions were read and unanimously adopted — viz : 

Whereas the Board of Directors of this Bank, on receiving in- 
formation of the misconduct of James A- Buchanan, President, and 
James W. M'Culloh, Cashier of the Office of Discount and Deposit 
at Baltimore, did immediately and unanimously dismiss from their 
service the said James W. M'Culloh, and would immediately and 
unanimously have dismissed the said James A. Buchanan had not 
doubts existed as to the extent of their powers over that officer. 

And whereas, by the official reports recently received from the 
Office at Baltimore it appears that the said James A. Buchanan and 
James W. M'Culloh have committed acts of fraud and delinquen- 
cy exceeding all the anticipations of this Board — that, violating the 
confidence and betraying the trust reposed in them, they have, 



I 

Without authority from this Board and without the knowledge of 
the Directors in Baltimore secretly distributed among themselves 
and their connexions, in the form of loans totally insecure, a most 
undue proportion of the funds of the Institution — that they have in 
the same manner lavished upon favourites or dependents or parti- 
zans the means destined to assist and encourage meritorious indus- 
try, and have consummated this career of faithlessness by fraudu- 
lently appropriating to themselves a large portion of the property 
confided to their care, which every moral obligation should have 
rendered sacred, and which their oaths of office solemnly bound 
them to protect and preserve. For delinquencies thus flagrant 
there is unfortunately no adequate punishment. The government 
of the United States has omitted to provide against crimes which it 
did not anticipate — and these violations of duty surpassing in mor- 
al turpitude almost every offence for which humbler criminals are 
condemned to ignominious suffering may escape from the penal 
law of the country. It ie therefore iihe more due to the moral 
sense of the community which is wounded by this triumph over 
the weakness of the laws — to the character of the nation which is 
sullied by such unworthy examples, that the Directors of this In- 
stitution should inscribe on its records the strong and indignant 
feelings of reprobation which these transactions have inspired. It 
is equally due to themselves to satisfy all who have committed to 
their charge such important interests, that if the frauds by which 
the stockholders and the community suffer are not followed by exem- 
plary punishment it will arise from no want of zeal in the discharge 
of their duty- — that on discovering the danger, the Directors, with 
the least possible delay, beyond what the interests of the bank im- 
periously demanded, removed the delinquents; that they have since 
been laboriously occupied in recovering the property wasted and 
pillaged — and that they now resort to the only method which the 
imperfection of the law has furnished to expose and punish the 
offenders. 

Be it therefore 

Resolved — That, as soon as in the opinion of the President the 
interests of the bank will permit, James W. M'Culloh be arrested 
and held to bail in a suit against him for the sums which he has 
taken by overdraft from the Office at Baltimore. And that a suit 
be also instituted against Messrs. Smith & Buchanan for the sums 
taken by them on overdrafts from that Office, in which suit Jas» 
A. Buchanan alone shall be arrested and held to bail. 



Ancf whereas, it appears that J. Louis La Heintrie first Teller s 
of the Office at Baltimore has fraudulently taken from that Office 
the sum of fifty thousand dollars, 

Revolved — That as soon as in the opinion of the President the 
interests of the bank will permit, the said J. Louis La Reintrie, 
be arrested and held to bail for so much of the said sum as may not 
be restored or secured. 

Extract from the minutes, 

THOMAS WILSON, Cashr, 



The President and Directors of the Bank of the United States, 
under a resolution of the 26th of November last past, have request- 
ed the President and Directors of the Office at Baltimore in con- 
formity to a resolution of the Stockholders of the Bank of the U- 
nited States resident in South Carolina, "To have published (after 
"the trial of the parties concerned) a full and authentic statement 
"from the documents in their possession, of the stupendous frauds 
"committed at that Office during the period when James A. Buch- 
"anan was President and James W. M'Culloh was Cashier:" 

The Directors of the Bank at Baltimore in pursuance of those 
instructions appointed a committee to prepare the said statement. 

In prosecuting this duty your committee beg leave to report-—* 
They perceive no more accurate, authentic, or intelligible course 
to proceed, in order to place before the stockholders the authentic 
statement required, than to submit the reports of the committees 
appointed at the time those transactions first became developed, 
and whose especial duty it was to investigate and report the situa- 
tion in which they found the affairs of this Office at the vacation of 
those officers, and also the report of the late trials at Harford ac- 
companying this statement, which contains a more particular de- 
tail of the leading items of those transactions. 

They rely that in this manner the information required will be 
accurately and undoubtedly obtained, and the stockholders fur- 
nished with data to estimate the extent and character of the trans- 
actions. 

In performing this painful duty it has been the wish of the com- 
mittee to confine the statements and documents to the above nam- 
ed officers of the bank, but such has been the nature of the trans- 
actions, and the engagements with other parties, particularly so, on 
the stock loans, that it has been found impracticable to give a clear 
and authentic statement without connecting manv other names. 



The resolution of the stockholders appears to require informa- 
tion only as it relates to frauds committed, but as your committee 
have determined to make the aforementioned reports the substance 
of theirs, they necessarily bring into view all the transactions of 
those parties by which loss has resulted to the Bank : the exhibi- 
tion therefore contains the entire of the sums taken by those per- 
sons on an alleged pledge of stock, and on personal security, includ- 
ing those with, as those without, the knowledge and consent of the 
Board. And your committee believing it will be satisfactory to the 
stockholders and included in the object of their resolution to have 
an estimate of the total loss probably to be sustained on those ex- 
traordinary and unauthorised transactions, they have accompanied 
the document with such estimate.—- They beg leave to state they 
have strictly and closely confined themselves in the various exhib- 
its, to the records and books and papers in the bank, not permitting 
themselves to add or diminish on any of them but have faithfully 
collated them. On the calculations of the total loss they have 
mainly been guided by the actual results so far as the effects or se- 
curities obtained have matured. 

The documents proceed in the following order — viz : 
No. 1, Is the report of the Committee dated June 7th, 1819, ap- 
pointed by this Board to take a survey of the effects of 
this Office, and to transfer the same from the late Cashier 
to the present. 
No. 2, Is the report of the Committee dated June 17th, 1819, and 
the documents therein referred to marked A, B, C, E, H, 
appointed by this Board to make a full report on the situa- 
tion and standing of this Office, for the use and informa- 
tion of the Parent Board at Philadelphia. 
No. 3, Is a statement of the total of the stock debt of S. Smith & 
Buchanan, James W. M'Culloh and George Williams — 
their individual portions of the same, its amount above the 
par value — the sums undertaken to be secured by each 
party— the result of that security — the total loss probable 
to be sustained on this part of the debt. — A more full ex- 
hibition of this part of the transactions may be found in the 
testimony taken at the late trials at Harford. 
No. 4, Exhibits the amount of the total loss which will probably 

by sustained by S. Smith & Buchanan. 
No. 5, Exhibits the amount of security on the part of that house 
for otherSi 



No. 6, Exhibits the amount of the total loss which will probably 
be sustained by J. W. M'Culloh. 

No. 7, Exhibits the amount of security on his part for others. 

No. 8, Exhibits the amount of the loss which will probably be 
sustained by George Williams. 

No. 9, Exhibits the amount of security on his part for others. 

No. 10, Is a statement of the stock loans above par to others than 
S. Smith &• Buchanan, James W. M'Culloh and George 
Williams with an estimate of the probable loss which will 
be sustained thereon. 

No. 11, Is an estimate of the loss which will probably result from 
the unauthorised discounts as exhibited in document H, 
granted to others than themselves and George Williams, 
or which have not been estimated in the foregoing state- 
ments. 

No. 1 2, Is a summary statement exhibiting the probable loss to be 
sustained from the transactions detailed in the preceding 
documents during the period James A. Buchanan was Pre- 
sident and James W. M'Culloh was Cashier — amounting 
to the enormous sum of $1,999,506 23 all of which is re* 
spectfully submitted by your committee. 

SIGNED 

GEORGE HOFFMAN, 
SOLOMON BETTS, 
J. W. PATTERSON, 
JAS. BEATTY, 
W. S. MOORE. 
Office of Discount and Deposit Baltimore, June 6tf&, 1823, 

NO L 

The Committee to whom have been entrusted the duty of tak ? 
ing account of the effects of this Institution beg leave to 

REPORT, that, after a laborious investigation, they have as- 
certained the following results : 
1819. 1st Cash Balance, 

May 20, received from 1st Teller in specie 174,357 13 

Notes of State Banks, 96,19158 

Notes of B. U. S. & Branches, 26,095 

Notes of this Office, 16,645 

Unsettled balance due by City Banks 98,602 35 

£411,891 06 



k 8 

May 31, received from the late Cashier 

In notes of this Office 68,500 

In notes of City Banks 1,500 70,000 

June 3rd, rec'd from do in City Bk. notes and change, 231 25 



482,122 31 
Cash balance per statement of May 20th, 566,409 48 



leaving a cash deficiency of $84,287 17 



For this deficiency the late Cashier has presented sundry items 
consisting of inland bills, notes, checks, &c. as per exhibit A, which 
items are herewith presented for the consideration of the Board.-— 
They think it necessary, however, to call your attention to some, 
of these particulars, viz. The check of D'Arcy & Didier on the 
City Bank dated 3rd March last for §20,000 endorsed by Lemuel 
Taylor and applied to his credit witK this Office on the 4th March. 
Why this transaction has been permitted to remain unadjusted 
your Committee are unable to ascertain. 

Amongst those items will also be discovered the promissory 
note of the late Cashier, dated 3rd inst. for §9326 46, which he 
represents to have been the amount of loss sustained by himself 
and friends in transmitting funds to New York in December last. 
His letter explanatory of this transaction is annexed, and also a 
letter from Mr. Colt on the same subject. The Committee forbear 
making any comment whatever, but they cannot avoid stating that 
they have no knowledge that the Board of Directors of this Office 
ever did authorise any committee to dispose of the funds of this 
institution. 

The Committee have occasion to add, with feelings of much in- 
dignation, that on the 27th May, the first Teller acknowledged that 
he had committed a gross imposition upon them by borrowing from 
an officer of one of our city banks a large amount in notes to make 
good his balance on the 20th, which sum he had returned and was 
now a defaulter to the amount of §50,000. The first Teller has 
since handed in sundry notes, stock, and an assignment, as per 
exhibit B, to secure part of this deficiency. 

Upon a careful investigation of Bills Receivable, your Commit- 
tee have ascertained that the notes comprised in the statement C 
amount to §3,718,696, and upon presenting this list to your con- 
sideration they cannot refrain from remarking that a considerable 



amount of these notes have never passed before your Committee 
in their capacity as Directors of this Office. 

The,Exhibit D, comprises the list of notes and the sums loaned 
upon stock at this Office amounting to $2,26 1,780 65. But your 
Committee observe that in this statement there are notes amount- 
ing to §752,598 23, for which they cannot discover any pledge of 
stock. 

They also find it necessary to state that there appears to have 
been loaned to Cumberland Dugan, and renewed upon the 13th. 
and 20th March last, §28,500 upon a pledge of 300 shares of United 
States bank stock made by him to this Office — Neither his notes 
or stock are to be found, and the late Cashier informs your Commit- 
tee that those 300 shares were sold by Mr. Dugan to Mr. Lemuel 
Taylor, and that they were surrendered to Mr. Taylor upon his 
promising to furnish this Office with Bills on London to the amount 
loaned. Since your Committee have been on duty, the late Cashier 
has presented to them the promissory note of Mr. Lemuel Taylor, 
dated 13th May, on demand, for §28,500 as payment for the a- 
bove stock. It will also be observed that 112 shares of U. S. Bank 
Stock, pledged to this Office by Mr. Lemuel Taylor, under an ad- 
vance of §10,640, are also missing, and the late Cashier states 
that he surrendered those shares to Mr. Taylor and received as a 
substitute sundry notes as stated in Stock List amounting to 
§10,937 07- 

On reference to the account of the Farmers' and Mechanics' 
Bank of Georgetown, your Committee discovered a balance due 
to this Office of §27,037 42, and upon applying to the late Cashier 
for explanation regarding it, he states that in December last the 
said Bank remitted to him Bills on London to the amount of 
£6080 sterling to be applied to the liquidation of the above balance, 
and that he sold these Bills to Messrs. S. Smith & Buchanan upon 
the 12th December and has not since received any payment there- 
for from that house. 

Your Committee find it necessary also to state, that there exists 
a debit in the account of foreign Bills of Exchange amounting to 
§5,405 60 which the late Cashier informs them arose from losses 
in exchange sustained in making remittances to the eastward in 
December 1817 and chargeable to S. Smith & Buchanan and him> 
self. 

It is the duty of your Committee to report, that from a state- 
ment handed to them by each of the three Bookkeepers it would 



10 

Appear, that on the 25th May the sum of overdrafts standing on 
their books amounted to $200,759 60. It is with feelings of much 
pain and regret, that they present these returns marked No. 1, 2, 
and 3 from the Bookkeepers to your consideration, and they feel 
it incumbent on them to add, that the Bookkeepers give them the 
strongest assurances that those drafts were sanctioned on all oc- 
casions by the late Cashier. The Committee find it impracticable 
under existing circumstances to ascertain with precision when this 
practice of overdrawing commenced, or to what injurious extent it 
may have been permitted, nor can they conjecture when the irre- 
gularities in the cash account originated, and they find no data to 
guide them towards just conclusions on those important points. 

To cover part of these overdrafts the late Cashier has present- 
ed some Notes, Inland Bills of Exchange, and Bank of the United 
States Stock, per exhibit marked E. 

All the money and effects referred to in this report were deli- 
vered to Mr. White, the Cashier in Bank, as they were received. 
Ail which is respectfully submitted. 

SIGNED, 

JAMES BEATTY. 
ISAAC EDMONDSOK 
DAVID WARFIELD. 

'Office of Discount and Deposits, Baltimore, 7th June, 1819. 

Note — The Exhibits herein referred to are similar to those ad- 
verted to in the Report of the 17th June. 



NO. II. 

The Committee appointed on the 15th June, 1819, by the Pre- 
sident and Directors of the Office of Discount and Deposit of the 
Bank of the United States at Baltimore respectfully Report: 

That by the general statement of the situation of the Bank on 
the 20th May, there ought to have been a cash balance in Bank to 
the amount of 8566,409 4a 

Of which there was delivered, as appears, 
by the Report of the Committee of in- 
vestigation, by the late Cashier through 
the hands of the First Teller, to Mr, 
White Cashier, 



11 



In specie, - , - $1 74,357 13 

Notes of State Banks, -- - 96,19158 

Notes of this Office, - - 16,645 00 

Notes of other Banks, - - 26,095 00 

Unsettled balances due by City Banks, 98,602 35 



411,891 06 



J54 s 518 4? 



leaving the above balance of §154,518 42 
which Mr. M'Culloh said he was an- 
swerable for, and that he reserved it 
for further settlement, which would 
not be made final until his bond was 
given up. But on the 31st of May 
Mr. M'Culloh did hand over to the 
present Cashier in notes of this Office 
and other City Banks, , - ]g 70,000 00 

and on the 3rd June the further sum of 231 25 

** , 70,231 25 



leaving a deficiency to be accounted for, by Mr. 

M'Culloh of - - - - 884,287 17 

To meet this deficiency he has offered sundry items consisting 
of notes, inland bills, certificates of stock, lottery tickets, a check 
on the City Bank, &c. per exhibit marked A. 

The check of D'Arcy & Didier on the City Bank dated 3rd 
March last, endorsed Lemuel Taylor, for 820,000 referred to in 
this exhibit, appears to have been placed to the credit of the latter 
account on the 4th March, and since held by the late Cashier, but 
never reported to the Board, 

The note of George Williams to S. Smith & Buchanan and en- 
dorsed by J. W. M'Culloh, also referred to, dated 3rd June for 
§9,326 46 offered in place of cash, he states to be the amount of 
loss sustained by him and his friends in remitting money to New 
York in December 1818. 

The greater part of the other items in this exhibit appear to 
have been taken and held by the late Cashier for money advanced 
privately upon them at different times ; but there being no record 
of these transactions, the duration of the practice and the extent to 
which it has been exercised, your Committee have^no evidence to 
determine. 



12 

It will be here proper to state, that the above sum of &4 It, 891 0& 
as handed over by the late Cashier through the First Teller, J. L. 
La Reintrie, when counted by the Committee of Investigation was 
found correct. But on the 27th of May, Mr. La Reintrie informed 
the existing Cashier that his cash account was $50,000 short : That 
he had been and was a defaulter to that extent ; to cover which he 
borrowed, on the day of examination, the above sum from the Tel- 
ler of one of our City Banks, and which he had subsequently re- 
turned. 

Exhibit B contains a list of the items which J. L. La Reintrie 
lias handed over to the Bank in consequence of his defalcation.. 
The amount of these items with the penalty of his bond for his faith- 
ful services will reduce the loss which the Bank may sustain by 
him to comparatively a small amount. It should however be ob- 
served, that there is a dispute between the late First Teller, J. L. 
La Reintrie, and the Union Bank respecting -gl 1,933 06 in specie, 
and to secure which certain notes as per exhibit C were handed in 
by him. 

Exhibit D, No. 1, 2, 3, contains a list of accounts overdrawn on 
the 20th of May amounting to $200,759 60. Your Committee 
cannot state with precision the extent of the injury the Bank has 
sustained by this unjustifiable procedure, but they deem it their du- 
ty to notice particularly the following persons, now or lately con- 
nected as Directors and Officers either in the Bank of the United 
States or this Office, as those who have gone to the greatest extent 
in this very improper conduct — viz ; 

S. ISmith & Buchanan overdrawn 20th May, - 39,916 24 

J. W. M'CulIoh, " " - - 14,011 47 

Ditto as Treasurer of a Church, - 10,012 06 

Ditto as Attorney for R. M. Johnson and 

others, 4,891 01 

George Williams, - - - - - - 13,539 12 

Nathaniel F. Williams, ----- 16,296 18 

Lemuel Taylor overdrawn ----- 29,032 03 

Christopher Deshon, - - 4,668 02 

Finley & Van Lear, 21,186 86 

Dennis A. Smith, - - - - - - 7,191 56 



8160,774 55 



and many of which sums have been greatly increased by subsequent 
entries for interest, &c. 



13 

To meet in part this great deficiency, the late Cashier has deli- 
vered to this Office sundry items as per exhibit marked E, which 
shall be applied, when collected, to their credit. 

Exhibit F, contains a list of Stock Loans and Notes amounting 
to §2,261,780 65. Your Committee hold it an imperious duty they 
owe the Board of Directors of this Office, to state, in the most ex- 
plicit terms, that the Stock Loans were, until early in the present 
year, under the sole controul and direction of the late President 
and Cashier; and that the Board here were under the full persua- 
sion that the said Executive Officers who exercised this power, de- 
rived their authority from the Parent Board ; there are now no do- 
cuments to be found in this Bank which throw any light on this 
subject, and the order to submit the Stock Notes for the approba- 
tion of the Board of Directors in January last was the first informa- 
tion they received on the subject. 

On investigation your Committee can find no stock in this Bank 
to secure the following notes included in the above named list — 
to wit: 

R. M. Johnson's and others note for - * $107,198 23 

Geo. Williams to A. A. Williams endors- 
ed by J. W. M'Culloh, - - 852,041 66 
Ditto ditto ditto 169,833 34 
Geo. Williams to S. Smith & Buchanan 

endorsed by J. W. M'Culloh, 10,000 00 

Ditto ditto ditto 156,723 23 

S. Smith & Buchanan to Geo. Williams, 

endorsed by J. W. M'Culloh, 97,875 00 

Ditto ditto ditto 10,C00 00 

Ditto ditto ditto 11,426 77 

Ditto ditto ditto 112.5C0 00 

Ditto ditto ditto 25,000 00 

. 645,400 00 

to which is to be added a loan made to Cumberland 

Dugan on 300 shares, .... 28,500 00 

and loan made to Lemuel Taylor on 112 shares 10,6+0 00 



Loans said to be granted on hypothecated Stock 8791,738 23 
but of which no evidence thereof could be found in Bank, neither 
the notes or stock in the two last items mentioned above were hand- 
ed over by the late Cashier, and on enquiry of him for explanation 
relative thereto, he stated that Mr, Dugan sometime since sold 300 



14j 

shares of stock of the U. S. Bank to Mr. Taylor when his note was 
given up to him, and that he, the late Cashier, subsequently handed 
over to Mr. Taylor the said stock, as well as his 1 12 shares, who 
promised to settle with him for the amount thereof, but had never 
done so, and he now handed into the Bank, for their acceptance, 
Mr. Taylor's note for §28,500 in lieu of the missing Stock of 300 
shares and C. Dugan's note—and sundry notes supposed good 
amounting to §10,937 07 in lieu of the 112 shares and Lem. Tay- 
lor's note for §10,640 also missing. 

In the Stock List presented the 8th March last, Jona. Meredith 
is put down as a borrower for the sum of §131,000, secured by 1018 
shares hypothecated to this Bank and D. A. Smith and mortgages 
on City property for the excess above par of §25 per share. On 
examination there were found only 900 shares of U. S. Bank Stock 
hypothecated, and no other security, except D. A. Smith's note, 
for the excess above par of §45 55 per share, and your Committee 
have no satisfactory information to give on this subject, or that of the 
heavy loans to Williams, Buchanan and M'Culloh ; they are told 
however that the §645,400 to those persons, and §107,198 23 to 
Johnson, was an advance of §25 per share on stock hypothecated 
at the Parent Bank, but of which no vouchers are to be found in 
this Office. 

Exhibit G, contains a list of the Bills Receivable as handed 
over by the late Cashier to Mr. White, amounting to §3,718,696. 

Your Committee have to state, that a large amount of notes con- 
tained in that list have never came before the Board of Directors 
for their approbation but were privately discounted by the late ex- 
ecutive officers. 

Schedule H, contains a list of such notes as the Committee are 
fully satisfied were thus discounted, amounting to §1,418,459 21, 
and which sum might, they believe, be greatly increased by adding 
thereto many other notes which your Committee not having a dis- 
tinct recollection of, have omitted ; but they would particularly call 
your attention to a large transfer from the Stock line to the Bills 
Receivable on the 12th of November last; they have no evidence 
of the propriety of this transfer, or by whose authority it was made, 
and the only explanation relative thereto to be found is the follow- 
ing entry, taken from the Books of the Bank on that date : 

" Bills Receivable, to Loans on Stocky 

** for this sum being amounts that had at various times 
t( been charged as lent upon hypothecation of stock at 



15 

* this Office, but which should have been charged to 
"B. R. as ascertained by making up a list of the loans 
« existing upon stock hypothecated here and at the B„ 
"U.S. §852,683 64? } 

Your Committee have no means of identifying the notes or 
items included in the above extraordinary entry. 

Your Committee would here beg leave to remark, that the ex- 
ecutive Officers of this Branch, exercised in addition to their prac- 
tice of discounting on Stock Notes, authority to deal in Inland 
Bills of Exchange and which was done to a great extent. 

On the 29th January 1818, the first separate entries in this line 
appear in the books. 
On the 23rd March 1818, the amount on this line was $327,000 

" 25th June " " 1,029,000 

" 16th June 1819* " only 103,966 

This practice it will appear obvious to the Board may be exercised 
to the great detriment of the Bank, and many of the irregularities 
detailed in this report may be traced to this class of business — and 
as connected with this subject we have to notice that on the 9th 
March 1819, Mr. M'Culloh ordered 825,535 to be passed to the* 
credit of S. Smith & Buchanan for a draft on Daniel C. Holliday 
of New Orleans and which was done, but the draft has never been 
in possession of the Bank, and Mr. M'Culloh now proposes to se- 
cure the same by a mortgage on the sugar estate here referred to. 

Your Committee have also to state, that there exists a debit in 
the account of theForeign Bills of Exchange, amounting to S5405 60 
which the late Cashier informs them arose from losses in exchange 
sustained in making remittances to the eastward in December 181 7^ 
and chargeable to S. Smith & Buchanan and himself. 

A note for jg 11,000 drawn by S. Smith & Buchanan and en- 
dorsed by G. Williams and J. W. M'Culloh, and one of 89,500^ 
drawn by S. Smith & Buchanan endorsed by Hollins & M'Blair it 
appears to your Committee were taken out of the Bank by the late 
Cashier, and in place of which he now offers his own notes for that 
amount, and proposes to give a mortgage on a plantation in Loui- 
siana as security for this sum and some other items. 

Your Committee observe by the list of notes made out in March 
last, that there was a note of 831,500 drawn by G. Williams to J 
W. M'Culloh endorsed by Dennis A. Smith, discounted without 
the knowledge of the Board for D. A. Smith's account; no such 
not'-, couid be found, but a note of Geo. Williams in favour of J. 
"W. M'Culloh has been presented in place thereof. 



16 

Your Committee would call your attention to the small sum 
extended for interest in the General Statement of the state of the 
Bank on the 31st of May. They are unable to account for the 
great deficiency that is apparent in this item, they have not time 
at present fully to investigate this subject, but as on the 1st De- 
cember the amount on loan was - - $7,225,882 00 
and on 31st May - - - - - 6,125,444 00 



The average amount on loan for the last 6 months 
may be estimated at $6,675,720 which at 3 per 
cent is - - - - ... 200,271 60 

by the statement of the interest received 

to 31st May there is credited 139,257 11 

to which is to be added this sum which 
the late Cashier acknowledges he and. 
his friends are chargeable with from 
March last on their notes 32,578 87 



1 71,835 98 



Apparent deficiency of interest $28,435 62 

leaving the above balance to be accounted for, and the present 
Cashier will investigate this subject as soon as practicable. 

Your Committee further report, that the Farmers' and Mechan- 
ics' Bank of Georgetown appear debtors to the amount of $27,037 42 
to this Institution. On demanding payment for this sum, of that 
Bank, they write that in November last, they sent Mr. M'Culloh 
Bills of Exchange on London to the amount of £6,080, to be sold 
and the proceeds applied to their credit. On enquiry of Mr. M'Cul- 
loh for an explanation he states, that he did receive such bills, that 
he sold them to S. Smith & Buchanan, but that they never paid 
him for the same, and that consequently no entries were made 
thereof in the books of the Bank. Your Committee report, that 
this business is now in train for full investigation, and for the pre- 
sent forbear making any comments thereon. 

By the facts herein above submitted it will appear, that the de- 
cision of the Board of Directors was not effectual in directing the 
loans of this Office, nor in limiting the amount thereof, for indepen- 
dent of the legitimate loans made by the Board; the money of this 
institution has been withdrawn in four distinct modes — 
By the late Cashier without any entry on the books, $84,287 17 
By the late first Teller, - 50,000 00 



17 

&y overdrafts by the late President, Cashier and some 

of the Directors and others, .... 200,759 60 
By private discounts without the knowledge and au- 
thority of the Board, 1,418,459 21 

A considerable proportion of this last item may be traced to 
the transactions in stocks, and the notes since brought to the line 
of Bills Receivable, but the whole operation was without the know- 
ledge or concurrence of the Board, as well as all the Loans on stock 
until early in the present year. 

Your Committee have been as concise as possible in summing 
up this disagreeable duty. They have forborne as far as possible 
all comments, as the facts speak in a language sufficiently strong* 

SIGNED, 

JOHN DONNELL, President. 
ROSWELL L. COLT. 
SOLOMON BETTS. 
DAVID WARFIELD. 

Office of Discount and Deposit t Baltimore June \7th, 1819. 

Note — Exhibits F and G, contained lists of all borrowers on 
stock and also on personal security, which it is not deemed neces- 
sary to furnish. 



86,800 00 


5,000 00 


4,341 92 


1,200 00 


3,300 00 


2,500 00 


2,000 00 


600 00 


275 00 



18 



Account of effects received from Mr. La Reintrie, the first Teller. 

68 Shares United States Bank Stock 

A House and Lot valued at - - - - 

A note of John and William Trull, due 14th June, - 
Do. JohnTessier, 29th 

Do. John Barrie, 5th July, » 

. Do. S. & A. Raphel, 21st May, 

Do. do. 29th 

Do. John Bullet, 27th August 

Do. of Henry Thompson,, for collection, - 

$26,016 92 
This office holds a bond for the faithful performance of Mr. La 
Reintrie's duty, secured by James C.Neilson and Luke Tiernan fo*- 
20,000 dollars. 



G. 



List of notes received from Mr. La Reintrie, late first Teller, 
to secure the specie which he permitted to be taken by the Officer 
of the Union Bank. 
Hollins & M'Blair favor John Gooding and endorsed 

by Lemuel Taylor and R. Higinbotham, 90 days, 

15th March, - $2,437 27 

Do. do. 90 days from 10th March, - - 2,433 84 

R. Higinbotham favor Lemuel Taylor, 25th March, 90 

days, - - - - - - - - 1,150 00 

Do* do. - - 1,150 00 

Lemuel Taylor favor John Gooding, Hollins & M 'Blair, 

and R. Higinbotham, 90 days from 1st of March, 4,982 02 

$12,153 13 






DESCRIPTION 



DRAW 



w 



A Note 

do. 

do. 

do. 
A check 
Lottery Tickets 

A note 
do. 
do, 

do, 

do. 

do. 

do. 

do. 
U. 8. B. Stock 
A check 



Finley fc^ 
John Sincl 
Sly. Payso 



FROM WHOM TAKEN 
BY LATE CASHR. 



am't. TO 

EACH. 



00 
28 
00 



Finley 
D'Arcy &££ 



* 



John Sincl| 86 



do. 



'59 62 



A. J. Schw 



A note 

do. 
do. 
do. 



Jesse Phelj 

M Ir60 06 

H.W.Gr^g 
James BaiW 52 
M;Henryj 10 



John J, 



frOO 
»00 



Jacob Ada 



Hr 



Douglass 
Geo. Will 



88 
00 



Finley & Van Lear' 

do. 

do. 

do. 

Lemuel Taylor 
Dr. Debutts 

N. F. Williams " 

do. 

do. 

do. 
do. 
do. 
do. 
do. 
do. 
A, J. Schwartze 



■N. F. Williams 

do. 

J.WMM'CulIoh 
do> 



26,453 



20,000 
1,600 



> i 11,144 40 



7,500 



S 66,697 40 
297 

488 
9,000 
9,32C> 46 



$85,808 86 



A. 



DESCRIPTION 



DRAWERS. 



ENDORSERS AND ON WHOM DRAWN. 



DATE. 



AJl'T. 



FROM WHOM HKEN I Am't. TO 
BY LATE CASHR. | EACH. 



A Note 

do. 

do. 

do. 
A check 
Lottery Tickets 

A note 
do. 
do. 



Finley &Van Lear 

Jolui Sinclair 

Hy. Payson, 8c Co. 

Finley & Van Lear 
D'Arcy & Didier 



do. 

do. 

do. 

do. 
U. S. B. Stock 
A check 



John Sinclair 

do. 
Jesse Phelps 

N. G. Bryson 
H.W.Gray 
James Barroll 
M'Henry & Shaw 
John J. Harrod 

A. J. Schwartze 



Douglass & Sorrel 
J. W. M'Culloh 
Geo. Williams 



Mathew Van Lear — Keller and Forman, 

Nathaniel F. Williams, -» 

Finley and Van Lear, i . - 

Talbot Jones, ------ 

Lemuel Taylor, on City Bank, - - - 
Fifty Tickets in the University Lottery, sum adv. on 

Nathaniel F. Williams, 

do. .... 

do. now forwarded to Washington, - 

Is. L. M'Coy— N. F. Williams, (payable 9th June) 

N.F.Williams, 

do. - 

do. ------ 

do. 

28 Shares U. S. Bank Stock, say at par, - 

On Commercial and Farmers Bank, - 

With a note of N. F. Williams at 60 days for equal 

sum as collateral for the next above ; To secure the 

next above and a similar note held by the bank of 

gl 3,000 there is lodged Powhattan Stock to amount 

per certificates for forty shares at par, 824,000 

N F.Williams 

J.J. Hoogewerff - - ".,"„. " „ a '„ 

J. White, cashr. to be secured by 600 sh's. City B. bt'k. 
3. Smith and Buchanan- Jas. W. M'Culloh - 



1819 

March 11 

1818 

October 1 

1819 

April 6 

1819 

March 10 
" 3 
" 11 

1818 

October 1 

December 
1819 

January 2 
February 1 



May 4 



1818 

November 19 
1819 
May 28 



8 months 
1 2 months 
6 months 
6 months 



18 months 

24 months 

6 months 



4 months 
4 months 
8 months 
10 months 



days 
60 days 



12,500 
2,828 
5,000 

6,^25 

20,000 
1,600 

2,906 
2,986 
759 62 

560 06 

361 

188 

273 52 

310 
2,800 
7,500 



9,000 
9,326 46 



Finley & Van Lear" 
do. 
do. 



Lemuel Taylor 
Dr. Debutts 



N. F. Williams 
do. 
do. 



do. 
do. 
do. 
do. 
do. 
do. 
A, J. Schwartze 



N. F. Williams 

do. 

J. W. M'Culloh 
do. 



26,453 



20,000 
1,600 



"i 11,144 40 



66,697 40 
297 



9,000 
9,3 26 46 
8 85,808 86 



DESCRIFTIOV. 



Note 

do. 

draft 

note 

do. 

- do. 

* do. 

draft 

do. 
do, 

note 

do. 

do. 

do. 

do. 

U.S. B. Stock 
draft 

do. 

note 

U. S. B. Stock 

note 



2 drafts 



J6 
Ji 
}S 
fa 
34 

cr 



H 



FOR WHOSE ACT HELD , 

i , , AMT TO 

TERM. AM'T. BYLATECASH'RASRE-; 

EACH AC J T 
iPORTED BY HIMSELF. ; 



6 months 6250 
60 days 2530 



45 
;60 
>60 



60 " 

60 « 

60 st. 

60 » 

60 « 



5000 
3000 
3121 90 

5875 
2662 18 

3000 

4200 

800 



6 months 362 50 



4 « 
6. " 
60 days 
4 months 1115 
15000 
90 days '1000 
4 months 1000 
60 days 1000 



385 95 

339 or 

282 92 



60 



4000 
20,700 



R. Higinbotham 
Isc. Munroe 

N. F. Williams 

do. 

do. 
Finley & Van Lear" 

do. 

do. 
do. 

do. 

A. J. Schwartze 

do. 

do. 

do. 

do, 
S. Smith & Buchanan 
Cum'b D. Williams 

do. 

do. 

do. 
George Williams 

Finley & Van Lear 



6250 
2530 



11,121 90 



J> 16,537 18 



J 



2185 44 



5000 



7000 



20,700 



71,624 52 
3300 
2110 18 



77,034 70 



EXHIBIT B. 



DESCHimOV, 



Note 
do. 
draft 

note 

do. 

do. 

do. 
draft 

do. 

do. 

note 

do. 

do. 

do. 

do. 

U. S. B. Stock 
draft 

do. 

note 
U. S. B. Stock 

note 



ENDORSERS AND ON WHOM DRAWN. 



Henry Payson & Co. 
N.F. Williams 
do. 

do. 
Baynard & Dickenson 
H. Young 8c Pochon 

do. 
Wm. Hill & Brothers 

Jas. H. Hawkins 

Elijah Craig 

John Barry Junr. 
Brundige Vose & Co. 
Wilson &. Robbins 
S. J. Thompson 
M'Donald & Ridgely 

Cum'b D. Williams 

do. 

do. 



S. Smith & Buchanan 



Thos. Higinbotham R. Higinbotham • 

Isc. Munroe - - - - ... 

fav. A. J. Schwartze on Daniel Lamott, Philadelphia forwarded for 
collection and now noted ------ 

C. D. Williams Thos. Marean 

N. F. Williams 

Finley & Van Lear Keller & Forman - - - - 

do. David Winchester - 

fav. Finley & Van Lear, endorsed Keller & Forman on John 7 
Brant & Co. N. O. - - \ , 
" John Harvy " Tho. W. Hawkins on Charles > 

Spraul N. O. - - S 
" Finley & Van Lear *' Keller & Forman on Wm. D. > 
Flours, N. O. - - S 
Jacquin & Pomerat " A. J. Schwartze - - - 

A. J. Schwartze -------- 

do 

do. - - - - 

do. 

50 shares U. S. Bank Stock, with cert, and power 
N. F. Williams endorsed Geo. Williams on Win, Paton Charleston 
do. do. do. 

to J. W. M'Culloh Cashier 

40 shares U. S. Bank Stock with power from Miss Susan Wil- ? 

liams say par £ 

George Williams -. 



1819 
May 11 

« 14 



May 10 
" 14 



FOR WHOSE ACT HELD 

TERM, j Am't. BY LATE CASh'k AS RE-j 

iPORTED BY HIMSELF, j 



6 months 6250 
60 days 2530 



said to be forwarded to Cincinnati, on aoct. of 



Apl, 



" 15 

Feby. 16 
May ' 
" 23 
1 
Apl. II 



May V 



May I 



45 " 

60 " 

60 " 

60 " 

60 " 

60 st. 

60 " 

60 " 
6 months 



5000 
3000 
3121 90 
5875 
2662 18 

3000 
4200 



R. Higinbotham 
Isc. Munroe 

N. F. Williams 

do. 

do. 
Finley & Van Lear' 

do. 

do. 
do. 



50 A. J. Schwartze 



6 " 
60 days 
4 months 1115 
J5000 
90 days '1000 
4 months 1000 
60 days 1000 

4000 



385 95 

339 or 



60 " 



do. 

do. 

do. 

do. 
S. Smith 8 
Cum'b D. Williams 

do. 

do. 

do. 



6250 
2530 



•> 16,537 18 



Buchanan 



),700 George Williams 



Finley 8i Van Lear 



5000 
7000 
20,700 



71,o24 52 
3300 
2110 18 



SCHEDULE H. 

List of Notes on hand May 20th 1819, and believed to have been discounted by the late Officers of this Office without the 
knowledge of the Board. 



For whom Discounted 


Drawers. 


Endorsers. 


Date. 


Time. 


Jiiiiount 


Total. 


Jno. Craig 
Solomon Etting 


Lem. Taylor 
G. W. Riclgely 


|„ Tiernan cc Co. J. Craig 


June 12, 1818 
March 31, 1819 
do. 


2 mouths 




2335 31 


Lott Kidgely S. Etting 


days 


109 65 






James Ridgely 


do. do. 


105 35 




do. 
do. 


Sam. Etting 
do. 


Sol. Etting 


April 5, 
March 31, 


months 


2228 00 
244 (10 


2687 00 


Calhoun & Matthews 


Calhoun and M. 


S. Smith & Buchanan 


May 23, 


days 


5000 00 




do. 


do. 


do. 


April 2, 


do. 


2.500 DO 




do. 


do. 


do. 


do. 20, 


do. 


4512 50 




J. A. Buchanan 


E. Claggett 
J. B. Davidgc 


Macdonald & R. J. A. Buchanan 


May 1, 


days 




6611 IS 


J. 1!. Davidgc 


J. W. -M'CulIoh 


Nov. 23, 181S 






5000 (10 


Chr. Deshou 


\ .1. S. hwartzc 


Chr. Deshon 


Oct. I*, 


i months 




195.5(1 00 


Thos. Finley 


Richd Hyatt 


X. V. Williams T. Finley 


April 1, 1819 


Odays 




13 23 93 


H. W. Gill 


R. W. Gill 


Geo. Williams 


June 1, 


do. 




7051) 00 


R. Higinbotham 


T. Higmbotham 


Lend Taylor 

( R. Hig'n, D'Arcy & Didier 1 
I Leml Taylor, Hullins & M'B. j 


April 30, 






5937 50 


T. Higinbotham 


do. 


May 26, 


do. 




30732 85 


R. Hyatt 


R. Hyatt 


Geo. Williams 


do. 7, 


do. 




2500 00 


John Hughes 


L. Pascault&H.Messonnici 


Jas. A. Buchanan 


April 23, 






800 00 


Jas. Houston 


Jas Houston * 


J. W. M'CulIoh 


Feb. 22, 


months 




800 (10 


C. S. Konig 


C. S. Konig 


D. A. Smith 


April 7, 


days 




2350 00 


Latimer & Lyon 


Latimer & Lyon 


R. Lyon D. A. Smith 


Nov. 20, 1818 


months 


1166 67 




do. 




D. A. Smith R. W. Latimer 


Oct 24, 


do. 


1087 21 




do. 


do. 


do. do. 


do. 


2 months 


1087 20 




do. 


do. 


do. do. R. Lyon 


Nov. 20, 




1106 C6 




do. 


do. 
J. B. Latimer, R. Lyon, Jr 


do. do. 
R. Lyon R. W. Latimer 


do. 

April 30, 1819 


months 
do. 


1160 67 


5674 41 

815 41 


Robt. Lyon, Jr. 




J. L. La Reintric 


Geo. Williams 


R. Hyatt J. L. La Reintrie 


Feb. 6, 


do. 




3500 00 


J. W. M'CulIoh 


Jf. F. Williams 


J. W. M-Culloh 


Tune 6, 


months 


1620 00 




do. 


John Mercer 


do. 


Nov. 3, 1817 


years 


32 18 00 




do. 


J. W. M'CulIoh 
L Phillipps 


S. Smith & Buchanan 
J. W. M'CulIoh 


Dec. 28, 1818 
Dec. 29, 


mouths 
months 


11000 00 


1586S 09. 
6000 00 


J. W. M'CulIoh, Trea. 




J. Myers & Co. 
do. 


L. Taylor, S. Smith & B. 
1. Gilmor & Sons 

kma. Meredith 


J. Myers & Co. 
do. 

OTA. Smith D'Arcy & Didier 
B. Schreffer 0. H. Neilson 


April !7, 1819 
16, 

May 14, 


days 
do, 


929 81 
7500 00 


8429 81 
4400 09 


Jona. Meredith 




0. H. Neilson 


J. Batturs 


April 27, 




1262 64 




do. 


Muminey & M^/" 


W r . Adams do. 


10, 


months 


403 04 




do. 


E.N-JrWmf 
^-rtamilton, Jr. 


Jo. B. Tevis do. 


19, 


months 


428 40 




do. 


Neilson N. & Co. do. 


March 2t, 


> months 


440 36 




do. ^^ 


r. & B. Harrison 


do. do. 


do. 


do. 


1061 75 




do. ^"^ 


Schultze, K. & Co. 


F. W. Henck do. 




do. 


1142 26 




&OyS^ 


J. C. Richards 


Neilson N. & Co. do. 


April 23, 


• do. 


987 08 






J. Reynolds 
J. & C. Baltzell 


do. do. 


24, 


do. 


752 32 






T. P. Baltzell do. 


5 


jO days 


470 00 




J do. 


Neilson N.& Co. 
J. F. Pooi- 


do. 
Humphrey Pierce 


payable May 30, 
June 1, 1818 


819 - 
3 months 


8000 00 


14947 85 


/John F. Poor 


2231 47 


do. 


do. 




do. 


2 do. 


2219 59 




do. 


do. 


do. 


Aug. 7, 1819 


JO days 


2242 42 


6693 48 


Hy. Payson 


W. Lorman 


rlenry Payson 


April 30, 


)0 days 




5000 00 


Rob. Purviance 


R. Purviance 


R. Higinbotham 


6, 


4375 00 




do. 


do. 


do. 


March 23, 


do'. 


6175 00 


10550 00 


A. J. Schwartze 


S, G. Albers 


A. J. Schwartze- 


une 2, 


5 months 


212 30 




do. 


A. J. Schwartze 


N. F. Williams 




50 days 
15 do. 


13000 00 




do. 


M. Klinefelter 


Gillett, Noyes & Co. 




452 20 




do. 


Ch'r Dcshon 


A. J. Schwartze 


Oct. 14^ 1818, 


2 months 


19550 00 


33214 50 


S. Smith & B. 


S. Smith & B. 


Hollins&M'Blair 


May 7, 1819 


50 days 


17257 86 






do. 


Feb. 25, 


1. months 


9500 00 




do. 


do. 


do. 


Jan. 30, 


do. 


17500 00 




do. 


do. 


George Williams 


Feb. 4, 


do. 


35000 00 




do. 


do. 


do. 


March 3, 


do. 


20000 00 


99257 86 


D. A. Smith 


Stockton & Stoke3 


Jona. Meredith 


April 2, 


90 days 


219 38 


do. 


B. Williamson 


I). A. Smith 


Sept. 11,1818 


months 


635 00 




do. 


Jas. Sterrett 


do. 


Nov. 20, 


1 year 


850 00 




do. 


W. Hollins 


L. Goodwin D. A. Smith 


jayable March 1st 
January 30, 1819 


1820 


320 48 




do. 


D. A. Smith 


J. W. M'CulIoh 


60 days 


15000 00 








do. 


Dec. I, 1818 


do. 


19000 00 






Job Smith 


D'Arcy and D. D. A. Smith 


March 17, 1S19 


do. 


7500 00 




do'. 


J. Gooding 
Geo. Williams 


Oct. 8, 1818 


6 months 


1350 00 




do. 


J. W. M'CulIoh 


Nov, 9, 


do. 


31500 00 




do. 


D'Arcy & Didier 


D. A. Smith 


Jany20,1819 


90 days 


3333 34 


79708 20 
10000 00 


Thos. Sheppard 
Leml Taylor 


T. Sheppard 

C. & P. Wirgman 

VonkapR'&B. 


L. Taylor D'Arcy & Didier 

Hy. Thompson L. Taylor 
Leml Taylor 


Dec. 12, 1818 


6 months 




March 20, 1819 


60 days 


6650 00 




do. 


Dec. 19, 


6 months 


5140 75 


11790 75 


W. H. Winder 


W'. H. Winder 


J. W. M'CulIoh 


May 4, 


60 days 


4964 00 


do. 


do. 


do. 


March 23, 


4275 00 


9239 00 














Geo. Williams 




Geo. Williams 


11, 


do. 


3893 33 




do. 


Geo. Williams 


Leml Taylor 
Geo. Williams 


20, 


do. 


13000 00 




do. 


S. Smith & B. 


30, 


do. 


12562 (10 




do. 


do. 


do. 


April 13, 
March 23, 


do. 


2500 00 




do. 


Geo. Williams 


S. Smith & B. 


do. 


15000 OC 




do. 


do. 


do. A. A. Williams 


24, 


do. 


15000 OC 






S. Smith & B. 


Geo. Williams 


May 18, 


do. 


20145 OC 




do. 


Winfield Scott 


1. W. M'CulIoh G. Williams 


payable April 1, 


1819 


2164 33 




do. 


do. 




do. 


1820 


2284 3C 




Geo. Winchester 


do. 
Geo. Winchester 


S. Smith & B. 


do. Jan. 1, 
April 3, 1819 


1821 
6 months 


2396 2£ 


8S945 28 


6500 OC 




do. 


do. D'Arcy & Didier 


do. 


60 days 


1000 OC 


7500 00 














S. Smith & B. 


S. Smith & B. 


Geo. Williams J. W. M'CulIoh 


May 7, 1819 


60 days 


325000 OC 




do. 


do. 






do. 


314000 OC 




do. 


do. 


do. do, 


do. 


do. 


125H0 <j( 




J. W.M'CulIoh 


do. 


do. do. 


do. 


do. 


15000 OC 


651500 00 


do. 


do. 




do. 


do. 


15000 0( 




do. 


do. 




do. 




25000 0( 




do. 


do. 


do. do. 




do. 


7136 1 




do. 


Geo. Williams 


S. Smith & B. do. 


do. 


do. 


15000 




do. 




do. do. 


do. 


do. 


12500 




do. 


do. 


do, do. 


do. 


do. 


155600 
















*'"" ' 














81418459 21 



19 
NO. 3. 

Statement of the Stock Debt of 8. Smith Sf Buchanan, J. W, 
M'Culloh and George Williams. 

Amount of Loan at Parent Bank, - - - 1,957,700 00 
Ditto this Office - 1,540,000 00 



Amount of arrangement, 3,497,700 00 
20,848 shares of U. States Bank Stock at par, 2,084,800 00 



Amount of Loans above par 1,412,900 00 

TO BE THUS SECURED. 

S. Smith & Buchanan were to secure, 300,000 00 
James W> M'Culloh ditto, 300,000 00 

George Williams ditto, 300,000 00 

The remainder of the amount of excess 
above par to be secured by their joint 
notes, the Stock to be held by the Bank 
for five years, - 512,900 00 



1,412,900 00 
From the alleged distribution of the Stock 

it appears by their statement that 

there were pledged 
At the Parent Bank 18,290 shares, amount of Loan, 1,957,700 00 
At this Office, 2,558 ditto ditto 1,540,000 00 



Forming an aggre- 
gate of 20,848 shares at 167 77 3,497,700 00 



Si Smith & Buchanan*s -J portion of the Stock Debt 

above par, by the above statement amounted to 470,966 67 

Of which sum there has been actually paid or sa- 
tisfactorily secured 300,000 00 



Amount of excess yet due by S. Smith & Buchanan, 

valuing the Stock at par - 170,966 $7 



20 

James W. M'Culloh's -J portion of the Stock debt 
above par by the foregoing statement, amounted 
to 470,966 66 

The sum of 300,000 dollars nominally se- 
cured is thus estimated, viz : 

His farms containing 846 acres, valued by 

him at 40,000 dollars, are estimated at 30,000 00 

The endorsements of Isaac Edmondson, 
S. Etting and Henry Payson, each for 
12,500 dollars ------- 37,500 00 

, 67,500 00 

The endorsements of S. Smith & Buchanan, George 
Williams, &c. &c. are considered without value 

Amount of excess yet due by J. W. M'Culloh, valu- 
ing the Stock at par, 403,466 66 



George Williams's •} portion of the Stock debt, as above 470,966 67 

The sum of 300,000 dollars nominally se- 
cured is thus estimated, viz : 

Real estate valued at 75,000 dollars sold 

for - - - 32,321 41 

Deducting prior mortgage on farm to E. 

F. Chambers, - 2,196 26 

30,125 15 

230 Shares of Franklin Manufacturing 

Company's Stock ------- 8,000 00 

112 Shares of Union ditto ditto 2,800 00 

JL. Taylor's endorsement of his notes to 

the amount of S 100,000, valued at 39,045 00 

T9,970 15 

The endorsements of S. Smith & Bucha- 
nan and Amos A. Williams are con- 
sidered as without value — — «— — • 

Amount of excess yet due by Geo. Williams, valuing 

the stock at par, ---------- 390,996 52 



21 

HECAPITULATION. 

S. Smith & Buchanan's proportion of excessive Loans 

upon Stock unsecured, 170,966 67 

James W. M'Culloh's ditto" ditto 403,466 66 

George Williams's ditto ditto 390,996 52 

Aggregate amount of Stock debt unsecured, valuing 

the Stock at par, --------- - £965,429 85 



No. 4. 

Amount of that portion of the Debt due by S. Smith 8{ Buchanan 
to this Office, which is considered as having originated for 
their exclusive use and benefit, and which is yet unpaid and 
unsecured. 

I of stock debt unsecured as already stated 1 70,966 67 

Their 4- of fractional part of stock notes 2136 12 712 04 

Their 2 notes endorsed by Geo. Williams 55,000 

3 notes of Calhoun & Mathews, in favor ot 

S. S. & B. 42,000 

Their 2 notes endorsed by Hollins & M'Blair 34,757 86 

Lemuel Taylor's note in their favor 15,000 

Amount of over draft May 20th 1819 39,916 24 

Their i of interest due on renewal of stock 

notes the 5th March and 7th May 1819, 10,859 62 



$50,775 86 



The following amounts have since 
been placed to their credit, 

50 shares U. S. Bank Stock recM 
from J. W. M'Culloh for their 
credit, 5000 

A House on Church-st. and a con- 
cern in paint establishment 
were taken at 20,000 25,000 

Due upon cash account 25,775 86 



\mount of their own debt unsecured $344,212 43 



No. 5. 

8. Smith Sf Buchanan are indebted to this Office as security for 
others to the following amount s 

As joint endorsers with J. W. M'Culloh 

for Geo. Williams | of the unsecured 

stock debt of 85 12,900 ..... 170,96667 

Do. with Geo. Williams for J. W. M'Cul- 

ioh £ of do. - ~ - - - 170,966 66 

As endorsers upon the Notes of Geo. 

Williams given by him in part of his 

proportion of the 8900,000 of stock 

debt - - - ... 75,000 

As do. upon J. W. M'Culloh's proportion 

of do. - - - - - - - - 147,500 

As do. upon the stock debt of R. M. John- 
son and others - - - - 107,198 23 

As endorsers upon the stock debt of Cal- 
houn & Mathews - - 19,216 
As do. upon the Notes of do. - 12,012 50 

As payers upon do. do. - - 1600 

As endorsers upon the firm of J. A. Buch- 
anan & Co. for do. - - - 6000 

As payers upon a note of L. Taylor's 
u do. upon 5 notes of Geo. Williams 
u endorsers upon 2 notes of do. 
«* do. on 1 do. with A. A. Williams 
" do. tlo. do. L.Taylor 

* payers with L. Tayjor and L. Goodwin 
Amount of their responsibilities for others 



m 


38,828 50 

15,000 


48,889 


13 


40,000 




15,000 




13,000 






..... 11 fi ftftO 1 ^ 


*™"" 




- 


800 


• ■ 


8843,149 19 



23 

No. 6. 

Amount of that portion of the Debt due by James W. M'Culloh to 
this Office, which is considered as having originated for his 
exclusive use and benefit, and which is yet unpaid and unse- 
cured. 

I Of stock debt unsecured as already 

stated - - - - - 170,966 66 
Amount of the unsecured part of his ^ of 

the 8900,000 - - - - 232,500 

$403,466 66 

His J of fraction of stock notes - - 712 04 

Amount of over draft May 20th 1819 14,01 1 47 

His £ of interest due on renewal of stock 

notes the 5th March and 7th May 1819 10,859 63 

_ — _ 24,871 10 



Amount of his debt unsecured $429,049 80 



No. 7. 

James W, M'Culloh is indebted to this Office as security for others 

to the following amount: 
As joint endorser with Geo. Williams for Smith & Buchanan's 
£ of the unsecured stock debt of $5 12,900 170,966 67 

Do. with S. Smith & Buchanan of G. Williams' do. do. 170,966 67 
As endorser upon the stock debt of R. M. Johnson and 

others - 107,198 23 

** do. do. a^ note of Isaac Phillips of 5600 4600 

" do. do. do. Geo. Williams 31,500 

do. do. a draft of J. Johnson and others on 
R.M.Johnson - 10,000 



Amount of his responsibilities for others $495,231 57 



No. 8. 

Amount of that portion of the Debt due by Geo. Williams to this 
Office, which is considered to have originated for his exclusive 
use and benefit, and which is yet unpaid and unsecured, 

■J Of stock debt unsecured as already stated 170,966 67 
Amount of his -J- unsecured part of the 

§900,000 220,029 85 

390,996 52 

His 4- of fractional part of stock notes* 712 04 

As endorser upon the notes of A. A. 

Williams - - - - - S9,000 

As payer with A. A. Williams and S. Smith 

& Buchanan - 15,000 

As endorser noon the notes of S. Smith 

& Buchanan - 48,889 13 

As payer upon do. do. 40,000 

, 88,889 13 

As do. endorsed by S. Smith & Buchanan 

and L. Taylor - - - 13,000 

Amount of over draft May 20th 1819 13,539 12 

His -§- of interest clue on renewal of stock 

notes on 5th March and 7th May, 1 8 i 9 10,859 6?, 
To amount of two drafts from Parent 

Bank upon him which remained unpaid 

on the 20th May, dated April 29th 

at sight for - - 82533, 33 

May 10 do. - - 3893 33 

6426 66 

Alledged to be for discount on notes in 

Parent Bank - — * —30,825 40 



Amount of his own debt unsecured g<H*M2S 09 



No. 9. 

George Williams is indebted to this Office as security for others 

to the following amount. 
As joint endorser with J. W. M'Culloh for S. Smith & Buchanan's 
i of the unsecured stock debt of $5 12,900 170,966 67 

Do. with S. Smith & Buchanan for J. W. M'Cul- 

loh's do. 170,966 66 

As endorser upon the notes of J. W. M'Culloh, 
given by the latter in part of his proportion of the 
900,000 of stock debt - 147,500 

As endorser upon the stock debt of R. M. Johnson 

and others - - - 107,198 2.3 

" do. " a stock note of Ths. Finley and R. 

Hyatt 1310 

" do. " do. of J. A. Morton Jr. 3890 

" payer upon other notes of do. 18,000 



endorser upon a stock note of A. A. 
Williams - 11,250 

Less the par value 10,300 



21,89.0 



As payer upon other notes of do. do. 34,000 



" endorser upon stock notes of R, & W. Gill 13,325 
do. " another note of do. 7650 



34,95l0 



20,975 



" payer upon notes of C. D. Williams g 15,000 

compromised with the latter 50 pr. ct. 7,500 

" endorser upon a note of Richard Hyatt 2,500 

As payer upon a note of R. Hyatt and J. L. La Rentrie 3,500 

endorser ditto of S. Smith & Buchanan 35,000 00 

ditto ditto ditto 20,000 00 

payer upon a note of Geo. Miles, Jr: - - - - 1,750 00 

*ditto of J. W. M'Culloh - - - - 31,500 00 



Amount of his responsibilities for others, - - 8777,506 56 

-7-,, ... 



* This Note dated Nov. 9th, 1818, at 6 months, is the one referred to in 
the report of the 17th June, it appears to have been discounted by the Cash- 
ier for the use of D. A. Smith, passed through the books as a Bill of Ex» 
-hange, was due 9 & 12 May 1819, \va"s not paid, and not protested, 



26 
NO. 10. 

Statement of the Stock Loans above par made by the late President 
and Cashier without the authority of the Board, to others than 
themselves — and on which the following losses will probably be 
sustained. 

Loans to fifteen parties, viz : whole amount of loans, 971,000 00 



Number of Shares pledged (U. S. B.) 6,264 
Havre de Grace Bk Stock §10,000 
Excess above the par value of the Stock - - 335,212 98 

Of which it is estimated there will be lost - - - $275,266 85 



NO. 11. 

Estimate of the probable loss upon unauthorized personal discounts 

as per Exhibit H, (exclusive of such as were originally given 

as Stock Loans) and which have not been estimated in any of 

the preceding documents. 

Loans to thirteen parties — Whole amount of Loans 122,957 54 

Amount since paid of the above - - 1 6,947 42 



Amount remaining unpaid, - - 106,010 12 



On which a loss is estimated to result of 77,114 00 



NO. IS; 

Summary Statement exhibiting the probable loss to be sustained 
from the transactions detailed in the preceding documents, dur- 
ing the period James Jl. Buchanan was President, and James 
W. M'Culloh was Cashier. Estimated probable loss. 
By S. Smith & Buchanan, an unsecured debt as de- 
tailed - 344,212 43 

» James W. M'Culloh, ditto - - - 429,049 80 

?J George Williams ditto - - 628,423 09 



gl,401,685 32 



27 

JlmH broH forward $1,401,685 32 

By granting loans on stock to other persons above the 

par value 275,266 85 

By discounting to other persons without the know- 
ledge of the Board - 77,114 00 

By the amount of Bills of Exchange transmitted by the 
Farmers' and Mechanics' Bank of George Town 
in December 1818, of £6,080 sterling, the particu r 
lars of which is stated in the testimony given in at 
the late trials at Harford -. - - 27,037 42 

By the amount of balance of interest of Bills of Ex- 
change account arising from speculations in fund- 
ed debt and other stocks, by S. Smith & Buchanan 
and James W. M'Culloh - - - 5,405 60 

This item is alleged to be a balance of interest a- 
rising on the use of monies taken out of the Bank 
by James W. M'Culloh and S. Smith & Buchanan. 
Tt appears from the entries on the books of the 
Bank, that in the months of September, October 
and November 1817, the sum of $857,772 68 was 
taken by James W. M'Culloh and S. Smith and 
Buchanan without the knowledge and authority of 
the Board of Directors, of which it appears, the 
sum of §526,830 07, as is more fully detailed on 
the trials at Harford, was invested by them and 
on their own account, in a speculation of 6 per ct. 
Government Stock, and by them transmitted to 
London for sale ; the amount was refunded to the 
Bank at various subsequent periods by the sale of 
Bills of Exchange drawn by S. Smith & Bucha- 
nan in favor of Amos A. Williams, on Messrs. 
Baring, Brothers & Co. London ; the remainder of 
the sum appears to have been invested in various 
Bank and other Stock for account of James W. 
M'Culloh and transmitted eastward. The am't 
of the above monies, it appears, was subsequently 
returned to the Bank, and this item is the balance 
of the interest account as alleged by themselves. 



81,786,509' 19 



38 

AmH broH forward, 1,786,509 19 

By surrendering Cumberland Dugan's 300 Shares of 
Bank Stock to Lemuel Taylor without payment 
or security for the payment thereof, - 28,500 00 

The particulars and proof of this item may be found 
in the detailed report of the 17th June 1819, of 
these documents. 
•By two notes missing from this Office, 
namely, S. Smith & Buchanan endors- 
ed by Hollins & M'Blair - - 9,500 00 
George Williams endorsed by J. W. 
M'Culioh 11,000 00 



—20,500 00 



Those two notes being missing, the late Cashier 
was applied to for them, when he passed his own 
for the amount, as stated in the report of the 17th 
June 1819. 

By giving S. Smith & Buchanan credit on the books 
of the Bank for a draft on D. C. Holliday of New 
Orleans, in March 1819, when no such draft ap- 
pears ever to have been in Bank. The detail of 
this transaction is more fully set forth in the trials 
at Harford - - - - 25,535 00 

By loss by various overdrafts other than those of S, 
Smith & Buchanan, James W. M'CulIoh and Geo. 
Williams already stated, amounting to the sum of 
$129,277 57 — resulting in loss as estimated 61,563 64 

By loss on James W. M'Culloh's cash deficiency pro- 
bable loss - - • 40,265 59 

The Report of June 17th 1819, states the cash de- 
ficiency of J. L. La Reintrie at the amount of 
$50,000. The effects handed in by him have been 
realized except for the sum of g850 leaving a de- 
ficiency of g24,699 75. The Committee have no 
reason to believe that any part thereof will be col- 
lected, neither have any of the notes contained in 
Exhibit C, been collected. The total loss by that 
default may be estimated at - 36,632 81 



£1,999,506 2S 



REPORT 



AT BELLE AIK. 



A REPORT 



OF THE 



LATELY DECIDED AT BELLE AIR, 

HARFORD COUNTY, MARYLAND j 

COMPILED AND DIGESTED UNDER THE DIRECTION AND SUPERINTENDANCE OF 

ROBERT GOOOEOE HARPER, 

ONE OF THE COUNSEL FOR THE PROSECUTION: 

ICROM THE WRITTEN EVIDENCE, HIS OWN NOTES, AND THOSE 
OF MR. MITCHELL AND MR. MURRAY, 

ALSO OF 

COUNSEL FOE THE PROSECUTION, 

AND CAREFULLY COMPARED WITH THOSE OF 

S3G3B jOTSSSOT GUBNlBlfiMi* 



Frsecipuum munus annalium reor, ne virtutes sileantur ; utque pravis dictis factisque, ex 
infamia et posteritate, metus sit."— TACT. 

It is the chief object of history to commemorate virtuous actions; and to restrain crimfs; 
by the fear of present and future infamy. 



BALTIMORE : PRINTED BY THOMAS MURPHY: 

1823, 



ADVEEHTESEMEftftf. 



May 27, 1823. 

The Board of Directors of the office of Discount and Deposit 
of the Branch Bank of the United States in Baltimore, at whose in- 
stance the Report now offered to the public was prepared, and by 
whose direction it is published, deem it proper to state thus pub- 
licly the motives and reasons of their conduct, in relation to these 
Trials and to the Report, which they know have been misrepre- 
sented, and may be misunderstood. 



On the 26th of August, 1819, the following letter and resolu- 
• tion were received at this office, from the president of the Bank of 
the United States : 

"Bank United States, August 24, 1819. 
Sir, 

I now enclose you a Report of a Committee, which was this 
day agreed to by this Board, on the subject of your letter of the 
13th instant. 

I am, Sir, very respectfully, 

Your obedient, 

L. CHEVES, Preset 
John White, Esq. 

Cashier of the Office B. U. S. Baltimore." 

The Committee to whom was referred the letter of the Cashier 
of the Office at Baltimore, requesting on the part of the Board of 
that Office, the advice and instructions of the Parent Board on the 
question of employing Counsel to aid the Attorney of the State of 
Maryland, in the pending prosecutions against the delinquent offi- 
cers of the Office at Baltimore, 
Report : 

That it appears that a Grand Jury of the State of Maryland, 
impannelled at Baltimore, have made presentments against seve- 
ral delinquent officers of the Office of the Bank of the U. States 
at Baltimore, and against delinquent officers of the City Bank, 



VI 

Union Bank, and Mechanics' Bank, all of Baltimore. That the 
defendants in these prosecutions have employed the most eminent, 
if not all the eminent Counsel resident at Baltimore; and that the 
City Bank, being disposed to employ eminent Counsel not resident 
at Baltimore, to aid in the prosecution, has requested the Office at 
Baltimore to unite with them in retaining and paying such Counsel. 
That the acts with which these delinquent officers are charged, are 
such as strike deeply at the interests and security of all Banking 
Institutions, and are such as ought to be legally punishable, for the 
prevention of such offences. That it has been doubted whether a 
criminal prosecution can be sustained, under the existing laws. 
That it is of great importance that the question should be unequi- 
vocally settled, by a solemn legal adjudication ; in order that, if 
they are now punishable in an adequate manner, the punishment of 
the law may fall upon the offenders, and by its example give that 
security which is the principal object of all criminal punishments. 
Or, if they are not so punishable, that the defect of the existing 
laws may be known, and Legislative wisdom called upon for a re- 
medy. That, to this end and with these views, eminent talents 
ought to be exerted in these cases, to give just weight to the ulti- 
mate decision, whatever it may be. The Committee therefore sub- 
mit for the consideration of the Board the following Resolve : 

Resolved, That the Board of the Office at Baltimore be autho- 
rized and requested, to unite with the City Bank and any other 
Banks of Baltimore, in retaining eminent Counsel to aid the Attor- 
ney of the State, in the prosecutions aforesaid." 

The indictments mentioned in these communications having 
been removed to Harford county for trial, early in the year 1 820, 
at the instance of the parties indicted, a second communication, 
which follows, was received at this Office, on the 2 1st of August in 
that year. 

<( Barik of the United States, l&th August, 1820. 
Sir, 

Annexed you will please find an extract from the minutes, con- 
taining a Report of a Committee, this day adopted, on the subject 
of your letter to the President dated 8th inst. 
I am Sir, very respectfully, 

Your obedient servant, 

JAMES HOUSTON, Assistant Cashier." 
JOHN WHITE Esq. Cashier Office B. U, S.Baltimore. 



VII 

At a meeting of the President and Directors of the Bank of 
the United States on the 

ISth August, 1820, 
The following Report was adopted, viz. 

The Committee on the State of the Offices, to whom was re- 
ferred the letter of the Cashier of the Office at Baltimore, dated 
the 8 tli intant, 
Refokt: 
That in their opinion the documents referred to in the subpcena 
which has been served upon the Cashier, ought to be promptly fur- 
nished, and they recommend that, in his reply to the ^aid letter, the 
President be instructed to declare it to be the opinion of this Board, 
that the Board of the Office at Baltimore ought, by a liberal re- 
ward, to procure adequate Counsel to assist in the prosecutions con- 
nected with this subject, in order that the authors of the frauds 
committed upon the Institution, if the existing laws will authorize 
it, be punished and, if not, that it may be distinctly seen, by a due 
management of the cases, by the Legislative authorities of the 
country, that their interposition is necessary to sustain the public 
morals, and protect- the pecuniary interests of the country in such 
cases. 

Extract from the minutes. 

JAMES HOUSTON, Ass't. Cashier." 

In December 1821, the decision of* Harford county court, sus- 
taining the demurrers to these indictments, was reversed by the 
court of Appeals ; and the cases were remanded to the inferior 
court, for trial on the facts. On the 30th of November 1 822, while 
they were depending there, a third letter was received from the 
Parent Board, which with its enclosure is here inserted. 

"Bank United States, Nov. %8th, 1822. 
JOHN WHITE, Esq. Cashier, Baltimore, 
Sir, 

Annexed, I transmit a Report of the Committee on the state 

of the Offices, adopted on 27th inst. requesting the publication of 

an authentic statement of the frauds committed at your Office, 

during the administration of J. A. Buchanan and J. W. M'CulloL 

I am very respectfully, 

Your obedient servant, 

THOS. WILSON, Cashier. 5 ' 



Vlll 

"At a meeting of the President and Directors of the Bank of 
the United States on the 26th November, 1822, 
The following Report and Resolution, were read and adopted, viz. 

The Committee on the State of the Offices to whom was refer- 
red a letter from David Alexander, Esq. Chairman of a meeting of 
the Stockholders of the Bank of the United States resident in 
South Carolina, enclosing a resolution of the said meeting, 
Report ; 

That the resolution is in the following words, to wit : 

Resolved, unanimously, that the President and Directors of the 
Parent Bank at Philadelphia, be requested to instruct the Presi- 
dent and Directors of the Office of Discount and Deposit at Bal- 
timore, to have published (after the trial of the parties concerned) 
a full and authentic statement 'from the documents in their posses- 
sion, of the stupendous frauds committed at that Office during the 
period when J. A. Buchanan was President and J. W. M'Culloh, 
Cashier, subject nevertheless, previous to publication, to the inspec- 
tion and revision of the Parent Board." That, in the opinion of 
the committee, the request of the said meeting of Stockholders is 
reasonable and ought to be complied with. The committee there- 
fore oner for the consideration of the Board, the following reso- 
lution : 

Resolved, That a copy of the said resolution be transmitted to 
ihe Office at Baltimore, with instructions to the said Office to com- 
ply therewith. 

Extract from the minutes. 

THOS. WILSON, Cashier." 

The " full and authentic statement" required by this communi- 
cation, was understood to mean a full report of the cases ; includ- 
ing the evidence written and oral, the arguments of counsel, and 
the decisions : Nothing less than which could satisfy the requisi- 
tion, or attain its object. Measures were therefore adopted, when 
the trials approached, to engage a skilful and experienced stenogra- 
pher to attend the trials, and report the whole proceedings. As it 
was believed that a suitable person would be more likely to be 
found at Washington than any where else, a letter was written 
early in March, by the Cashier of the Baltimore Branch, to Mr. 
Richard Smith, the Cashier of the Branch at Washington, request- 
ing him to find out and engage one. On the 5th of that month he 
answered as follows : 



" Office of Bank United States, Washington, March 5th, 1823. 
DtAR Sir, 

Mr. Rind, editor of the George-Town Metropolitan, has 
consented to go to Belle Air to take the proceedings of the trial, 
expected to come on. He considers himself competent to the 
task, and I have been otherwise informed that he is so. He will 
not name any specific sum for his services ; but will leave it to the 
liberality of the Bank, to grant him such compensation as he may 
deserve. . I have told him, that his expenses there and bick should 
be paid ; and that if the trial did not come on, he still should be 
allowed for his trouble. If you wish me to engage him on these 
terms, be pleased to say so as soon as possible ; and also to state 
the time it will be necessary for him to go on. 
I am very respectfully, 

Your obedient servant, 

R. 6MITH, Cashier. 
John White, Esq. Cashier." 

Being authorised in reply to engage Mr. Rind, on such terms 
as he might think reasonable, he wrote on the < 4th the following 
letter and postscript, which were delivered in a day or two after- 
wards, by Mr. Brunet, the person whom the postscript mentions* 

* Office of the Bank U. States, Washington March lUh, 1823, 
Dear Sir, 

This letter will be handed to you by Mr Rind, the Gentle-: 
man who has undertaken to report the trials at Belle Air. I have 
made no arrangement with him respecting the compensation he is 
to receive — He prefers leaving it to the liberality of your Board to 
make him such allowances as he may merit. 
I am very respectfully, 

Your obedient servant, 

R. SMITH, Cashier. 
John White, Esq. Cashier. 
9 o'clock at night. 

Mr. Rind requests me to state that his partner, Mr Brunet, 
whom he considers equally competent to the above business, will 
deliver this letter and perform the above service. 

R. S. Cashier." 

Mr. Brunet accordingly proceeded to Belle Air, when the trials 
commenced, which was about the 16th of March 1823, and en- 



gaged, in taking notes for a report of the cases. This report, as 
was distinctly understood between him and Mr. White, was to em- 
brace not only the evidence in all the cases, but the important 
points of the arguments of Counsel on both sides. 

The evidence in the first case, which embraced by far the great- 
est extent and variety of matter, was closed on the 1st April, 1823. 
On that day Mr. Brunet left Belle Air, without any previous notice 
or intimation to Mr. White. 

He had previously, however, applied for and received a small 
sum of money ; and he left for Mr. White the following letter, 
without date, but apparently written on the day of his departure. 

«Mr. WHITE, 

Sir, 

The evidence in the cases are now at an end ; and as busi- 
ness of the first importance requires that I should be at home on 
Thursday, I shall take the present opportunity of going to Bal- 
timore. If (which I don't think needful) you want the argument 
in the case you will apply to the Counsel, I have no doubt but 
what they will furnish it. I have all the evidence pro and con; 
which I am glad of, as I should have been compelled to go to-mor- 
row if they had not have closed it ; even though I should have for- 
feited the sum I expect to make by the report, as it is likely the ar- 
gument will not cease for several days. You will find out if the 
other cases will come on, write me directed to Baltimore— at any 
rate I will be here if possible on Friday or Saturday. I hope you 
will be assured that nothing but urgent business could cause me 
to go. 

Yours respectfully, 

J. BRUNET.'* 

Mr. Brunet returned no more to Belle Air ; nor was any thing 
heard from him, or of him or his notes. It being resolved to make 
a report of the cases, from the notes of the Counsel on both sides, 
as far as they could be obtained, and from the books and papers 
given in evidence ; and one of the Counsel for the prosecution hav- 
ing undertaken, at the request of a Committee of the Branch 
Board, to direct and superintend this report ; an attempt was made 
by his advice, to obtain the notes of Mr. Brunet. For this purpose 
Mr. White wrote again to Mr. Richard Smith, on the 2nd May, 
1823. An extract from Mr. Smith's answer follows: 



XI 

" Office of Bank United States, Washington, May 6th, 1823. 
Dear Sir, 
Mr. Brunet informs me that he has the notes of the testimo- 
ny given on the late trial, and that in an hour's time, he could 
complete transcribing them. He professes ignorance of the bar- 
gain made with Mr. Rind, but told me yesterday that in the course 
of an hour he would let me know the price at which he would fur« 
nish them. 

I am very respectfully, 

Your obedient servant, 

R. SMITH, Cashier. 
John White, Esq. Cashier." 

On the 8th of the same month Mr. White wrote and trans- 
mitted to Mr. Smith, the following reply to this letter. 

« Office of Bank United States, May 8th, 1823. 
Dear Sir, 

I have received your letter ojf the 6th inst. and upon refer- 
ing to that of the 14th March, delivered to me open by Mr. Brunet, 
and consequently containing terms which he deemed satisfactory, 
and to which thisDflice cheerfully acquiesced ; I find you express 
yourself as follows : " This letter will be handed to you by Mr. 
Rind, the gentleman who has undertaken to report the trials at 
Belle Air. I have made no arrangement with Mm respecting the 
compensation he is to receive — He prefers leaving it to the liberali- 
ty of your Board to make him such allowance as he may merit"—, 
and you then add in a postscript, " Mr. Rind requests me to state 
that his partner Mr. Brunet whom he considers equally competent 
to the above business, will deliver this letter and perform the above 
service." In pursuance of this agreement on the part of this Of- 
fice, there can be no objection to propose to Mr. Brunet, that if he 
will transcribe his notes and forward them to any friend here, to 
be submitted to the judgment of a competent person, for instance 
Mr. Harper who was present, this Office will faithfully comply 
with the tenor and spirit also of your agreement. 
R. Smith, Esq. Cashier." 

On the 10th he received from Mr. Smith a letter on the same 
subject dated on the 8th, and enclosing an extract of one from Mr. 
Brunet. This extract and one from Mr. Smith's letter of the 8th^ 



XII 

which embraced ether matters wholly unconnected with this, are 
as follows : 

"Office of Bank U. States, Washington, May 8, 1823. 
Dear Sir, 

Your letter of 7th instant is received. I enclose an 
extract of a letter this day received from Mr. Brunet. His de- 
mands are so exhorbitant, that they cannot for a moment be listen- 
ed to. I have therefore demanded of Mr. Rind, a fulfilment of the 
bargain made with him ; or a return of the money you advanced 
Mr. Brunet. 

I am, very respectfully, 

Your obedient servant, 

RICHARD SMITH, Cashier. 
John White, Esq. Cashier, Baltimore." 

"Extract of a Letter from X Brunet to R. Smith, Cashier, dated 
May 7, 1823. 
For the report written off; except the copies of documents fur- 
nished from the Bank Books, I must receive !g 1,000; r if the 
Board please, they may take my notes for g300. You sir, may be 
astonished at this demand, but if you will recollect the time I was 
from home, the neglect of my business, and trouble of writing it oft; 
you will be satisfied it is not more than a fair compensation \ if the 
Bank should refuse both the foregoing propositions, I shall have the 
report published. 

Signed, J. BRUNET." 

On the 15th of May, Mr. White received an answer from Mr. 
Smith, to his letter of the 8th, since which nothing further has been 
heard from, or of Mr. Brunet. This answer is as follows : 

" Office of Bank U. States, Washington, May 13, 1823. 
Dear Sir, 

Your letter of 8th instant has been shewn to Mr. 
Brunet, and he says he will finish transcribing the notes of the trial 
at Belle Air in a few days, and will take them on to Baltimore, 
when he will submit them to the arbitration of such persons as may 
be agreed on. He proposes Mr. Gales on his part, 
I am, very respectfully, 

Your obedient servant, 

RICHARD SMITH, Cashier. 
John White, Esq. Cashier, Baltimore. 9 l 



Xlll 

It having been perceived at Mr. Brunet's departure from Belle- 
Air, that his return could not be relied on, and that little depen- 
dence ought to be placed on the notes taken by him while he staid 
there, the Counsel for the prosecution were requested to take full 
notes of the argument then about to commence, as well as of the 
evidence in the subsequent cases; and it was afterwards found 
that their notes of the preceding evidence, taken in connexion with 
the written testimony, were so full and complete, as to leave little 
room for regreting the failure of Mr. Brunet. But as it was on 
every account indispensible, to render the report as complete and 
satisfactory as possible, both as related to the evidence and the ar- 
guments of Counsel, especially those of the Traversers, Mr. 
White, by the advice of General Harper, who had undertaken, at 
the request of the committee, the direction and superintendance of 
the Report, made application by letter to General Winder, Mi\ 
Kell and Mr. Archer ; the former of whom alone engaged in the 
argument, on the facts, and the two latter were understood to have 
taken very full notes of the whole proceedings. His letters, with 
the answers of those gentlemen, are inserted at length ; in order 
that their reasons for declining compliance, may be given in their 
own words. 

(copy.) 
• Office Bank U. States, April 16, 1823. 
Sir, 

I am directed to inform you, that a statement of the pro- 
ceedings before the Court at Belle Air, is now preparing for publi- 
cation, by order of the Board of Directors, under the superinten- 
dance of eminent Counsel, and your argument in defence of the 
parties indicted will be inserted, should you find it convenient t@ 
furnish it. 

I am, Sir, very respectfully, 

Your obedient servant, 

JOHN WHITE, Cashier. 
Wm. H. Winder, Esq. 

Counsellor at Laiv." 
A copy of the above under date the 18th, was directed to Mr. 
Kell. 



XIV 

" Chatham Street, April 16, 1823. 
Sir, 

I have received your note of to-day, and have only to 
state in reply, that neither my sense of duty, nor my avocations, 
permit me to contribute to the proposed publication. 
I am, very respectfully, 

Your obedient servant, 

WM.H. WINDER. 
John White, Esq. Cashier." 

"April 19th, 1823. 
Sir, 

In reply to your note of yesterday I have only to say, 
that professional engagements at this time would render it very in- 
convenient for me to retrace from memory (for I have no other re- 
ference) and commit to writing what I may have said in the cases 
alluded to — and a proper regard for my situation as one of the 
Counsel of the parties, and what is due to them, in my judgment, 
forbids me participating in any way in any publication to be made 
ks announced by your note. 

I am, respectfully, 

Your obedient servant, 

THOMAS KELL. 

John White, Esq. 

Cashier Office Discount and Deposit" 

(copy.) 
"Office Bank U. S. Baltimore, April 24, 1823. 
Sir, 

The Board of Directors of this Office are preparing for 
publication, under the superintendance of eminent Counsel, a state- 
ment of the proceedings before the Court at Belle Air, and under- 
standing that you made very full notes of the evidence and argu- 
ments, I am directed to request the favor of you to furnish them, 
for the purpose of making up the Report, and of being used to com- 
pare with the notes of other Counsel, so as to arrive at every at- 
tainable accuracy. 

I am, Sir, very respectfully, 

Your obedient servant, 

JOHN WHITE, Cashier. 
Stevenson Archer, Esq. 

Counsellor at Law." 



" Belle Mr, Md. April 29, 1823. 
Sir, 

I have received your letter dated 24th instant, informing 
me that the Board of your Office are preparing for the press " a 
statement of the proceedings" before the County Court of Hart- 
ford, in the trials lately depending against Buchanan and M'Culloh, 
and requesting me to furnish my notes, that the contemplated re- 
port may be made with all attainable accuracy. 

I would with pleasure comply with your request, if I conceived 
I could do so with propriety. But my notes were taken as one of 
the defendants' Counsel, only intended to be used at the trial of 
the cause ; and I do not feel myself at liberty, without the appro- 
bation of my clients, (whose wishes on account of my distance 
from them I cannot consult) to furnish these notes to the Office. 
With assurances of respect, 

I am your obedient servant, 

STEVENSON ARCHER. 
John White, Esq. 

Cashier Office Discount and Deposit, Baltimore." 

" Office Bank U. States, April 30, 1823. 
Sir, 

I am directed by Mr. Harper, who is the Counsellor en- 
gaged by this Office to compile a narrative of the recent trials at 
Belle Air, to solicit the loan of your notes for the purpose of com- 
parison and correction. 

I am, Sir, very respectfully, 

Your obedient servant, 

JOHNWHITE, Cashier. 
Thomas Kell, Esq." 



" Baltimore, May 1st, 1823. 
Sir, 

The notes taken by me on the late trials at Harford, (the 
use of which is requested by your note of yesterday,) are not in my 
possession ; they were, on the close of the cases, delivered to one 
of the parties ; were they with me, the considerations mentioned in 
my former note, w r ould preclude my sharing in any manner in the 
publication, intended by the Bank upon this subject. 



XVI 

General Winder, who has seen this, desires me to say, that he 
requests it may also be accepted as his answer to -your note to him, 
if his pressing engagements prevent any other early reply. 
1 am, very respectfully, 

Your obedient servant, 

THOMAS KELL* 
John White, Esq. 

Cashier Office Discount and Deposits Baltimore." 

« Office Bank U. States, April 30, 1823. 
Sir, 

I am directed by Mr. Harper, who is the Counsellor en- 
gaged by this Office, to compile a narrative of the recent trials at 
Belle Air, to solicit the loan of your notes, for the purpose of com« 
parison and correction. 

1 am, Sir, very respectfully, 

Your obedient servant, 

JOHN WHITE, Cashier. 
Wm. H. Winder, Esq." 

It being thought very desirable to insert into the Report the 
opinions delivered by the Judges ; and Judge Dorsey, on being ap- 
plied to, having promised to furnish his; Mr. White addressed the 
following letter to Judge Hanson, who had delivered a written 
opinion as that of himself and Judge Ward, in support of the de- 
cision of the Court in the first case. 

(copy.)- 
" Office Bank U. States, April 18, f823. ' 
Sir, 

A statement of the proceedings before the Court at Belle 
Air, is now preparing for publication bj order of the Board of Di- 
rectors, under the superintendante of eminent Counsel ; and I am 
directed to inform you that the decisions of the Court, which you 
delivered upon the demurrer, and upon the recent trial of the par- 
ties indicted, will be carefully inserted, should you find it conven- 
ient to furnish them. 

I am, Sir, very respectfully, 

Your most obedient servant, 

JOHN WHITE, Cashier, 
C, W. Hanson, Esq. Associate Judge," 






XV11 

The following note from Mr. White, written on the 13th of 
May, will shew in what manner this application was answered. 

" Upon the 29th of April, Judge Hanson's nephew called upon 
me with my letter in his hand, and said he was directed by Mr. 
Hanson to inquire if I had left it at his house on the 18th instant, 
as he had not then seen it. I replied, that I had sent it by the por- 
ter of the Bank to his house, the day after its date. He shortly af- 
terwards returned and told me, that Judge Hanson said, he did not 
consider it proper to furnish his opinion in either case, or words to 
that effect. I told his nephew to tell Judge Hanson, I would thank 
him to write me a note to that effect. I have heard nothing since 
on the subject." 

The compilers of the Report being thus deprived of all assis- 
tance from the notes of the Reporter originally employed, as well 
as from those of the Counsel for the Traversers, lost in some mea- 
sure that which they expected from the Attorney General, He re- 
sides in the country, at some distance from Baltimore; and before a 
letter could reach him, requesting the use of his notes, and his as- 
sistance in preparing his own very able argument for the press, he 
had left home to attend the County Court of Anne Arundel, at 
Annapolis. In passing through Baltimore, however, he promised 
to furnish both, as soon as he could get home again. His notes 
have accordingly been sent, and were received in time to aid in 
preparing a very material part of the report. They have been care- 
fully compared with that part which had been previously prepared, 
and are found to agree with it entirely, as far as they go. They 
are not, however, very full : for, as he justly remarks in his letter 
transmitting them, " his time was rather occupied in offering the 
testimony, than in taking notes of it." 

A severe domestic calamity which occurred about the same time, 
and which indeed recalled him to Annapolis sooner than he ex- 
pected, prevented him from preparing his argument ; but after be- 
ing drawn up from the notes of his associates, it has undergone his 
revision and correction. 

No pains have been spared to make the report full and correct, 
both as relates to the arguments and the evidence. The notes of 
Mr. Mitchell and Mr. Murray, which are very copious and accu- 
rate, have been carefully compared, and constantly under the eyes 
of the compilers. Nothing of importance has been stated in which 
they di<* not agree. Indeed, no instance of material disagreement 
ha* been discovered. The notes of General Harper, which are 



XV1U 

more concise, have also been constantly consulted, and are found 
in every instance to accord, as far as they go, with those of his two 
learned colleagues. The documentary part of the Report, as it went 
to be copied fair for the press, passed under the revision of Mr. 
"White, the Cashier of the Baltimore Branch, who was himself a 
principal witness, in order to have it compared with the books and 
written documents in the Office. Indeed, a very great and impor- 
tant part of the evidence, consisted in these books and documents. 
As far as relates to this part, consequently, the most perfect reli- 
ance may be placed in the accuracy of the Report ; and wherever 
recourse could be had to the witnesses, and there are but very few 
instances in which it could not ; their testimony after it was copied 
fair, and before it went to the press, was submitted to their revi- 
sion.* With all these aids and precautions, it is hoped and be- 
lieved that every fact considered as material by either party, has 
been fully and correctly exhibited. 



* Jfote. — The only witnesses whose testimony as here published has not 
received their express sanction, are Mr. John Oliver, Mr. R. L. Colt, Mr. D. A. 
Smith, Mr. A. A. Williams, and Mr. J. Meredith. Mr. Oliver was taken dan- 
gerously ill, bcibre his testimony was prepared, and continued so till after it 
became necessary to print it. 

Mr. Colt inspected and approved the first partof his testimony that appears 
in the report. Before the rest of it was prepared he went on business to 
New-York, and has not yet returned. But it has all been compared with a 
memorandum of his whole testimony, drawn up by himself, immediately after 
the trial ; with which it perfectly agrees. 

Mr. Smith does not reside in this city ; nor is there any post office nearer 
to him« The first part of his testimony was not transmitted for his revision, 
because it rented solely to the proof of a paper which the Court rejected. 
It was however pi^pared, like all the rest, from the notes of Mr. Mitchell 
and Mr. Murray. All lis testimony on the part of the Traversers, after be- 
ing thus prepared, was er^ioseu in a letter requesting him to revise it, and 
placed in the post office in Ba*i more . which was understood, on inquiry, to 
be the proper manner of transmiWgg letters to him. No answer has yet 
been received; from which it is to bt. apprehended that he has never re- 
ceived the letter. 

That part of his testimony which came out J n the reply in evidence, on 
the part of the state, was not placed in the post ofh<^ . because it was drawn 
up from a written statement, furnished by Mr. Smith hin*;elf, at the request of 
one of the Counsel for the prosecution, before he gave the testimony ; which 
was merely an oral repetition of the statement. 

The testimony of Mr. A. A. Williams and Mr. Meredith was put into the 
hands of those gentlemen more than ten days ago ; but their avocation? pre- 



vented them from furnishing their corrections till the 25th instant ; when it 
had been already printed. The corrections of Mr. Williams are merely 
verbal. Those of Mr. Meredith do not in the least vary any material fact. 
But to prevent all possibility of misapprehension or mistake, the testimony 
of both these gentlemen, as corrected by themselves, is subjoined to the 
Report. 






REPORT 

OF THE 

COXSTTR..&.CX CASES, 



IN July 1819, Bills of Indictment were found in Baltimore City 
Court, the court of Criminal Jurisdiction for the city of Baltimore, 
against a number of persons, for conspiracies to defraud several 
Banks. Among the rest there was one against James A. Buchanan 
James W. M'Culloh and George Williams, for a conspiracy to de- 
fraud the Bank of the United States, through its Branch in Balti- 
more; of which Buchanan had been President, and M'Culloh. 
Cashier. George Williams had been at the same time a director 
of the Parent Bank. 

This indictment was founded on several discounts on Stock 
notes, to a very large amount, obtained by these persons in the 
Branch Bank, by indirect means as was alleged ; and it is in the 
following words : 

"State of Maryland, City of Baltimore, to wit i 

The jurors for the State of Maryland, for the body of the City 
of Baltimore, on their oath present, that by an act of Congress of 
the United States, passed on the 10th day of April, in the year of 
our Lord 1816, at the city of Washington, entitled an act to incor- 
porate the subscribers to the Bank of the United States — " A Bank 
was established and chartered as a corporation and body politic, by 
the name and stile of the "President Directors and Company of 
the Bank of the United States," with authority, power and capaci- 
ty among other things to have, purchase, receive, possess, enjoy, 
and retain to them and their successors, lands, rents, tenements, 
hereditaments, goods, chatties, and effects of whatsoever kind, 



3 

nature and quality, to an amount not exceeding in the whole 
1855,000,000. To deal and trade in bills of exchange, gold and 
silver bullion ; and to take at the rate of 6 per. cent, per annum for 
upon its loans or discounts, and to issue bills or notes signed by the 
President and countersigned by the principal Cashier or Trea- 
surer thereof, promising the payment of money to any person or 
persons, his, her or their order, or to bearer. 

And that under, and by virtue of the power and authority giv- 
en to the said' directors by said act of Congress, an Office of Dis- 
count and Deposit of the said corporation was, at the time herein- 
after mentioned, regularly and duly established in pursuance of the 
power contained in said act at the city of Baltimore, in the state 
of Maryland, aforesaid. And that George Williams, late of the 
eity of Baltimore, merchant, was at the time hereinafter mentioned 
and before and afterwards one of the directors of the said Bank 
of the United States at Philadelphia, to wit, at the city of Balti- 
more aforesaid. And that James A. Buchanan, late of the city of 
Baltimore, merchant, was at the time hereinafter mentioned, and 
before and since, President of the said Office of Discount and 
Deposit of the said Bank of the United States, in the city of Bal- 
timore. And that James W. M'Culloh, late of the city of Balti- 
more, gentleman, was at the time hereinafter mentioned, and be- 
fore and afterwards, Cashier of the said Office of Discount and 
Deposit, of the said Bank of the United States in the city ot Balti- 
more, to wit, at the city of Baltimore aforesaid. And that the said 
George Williams, so being one of the Directors of the said Bank 
of the United States, and the said James A.Buchanan, so being Pre- 
sident of the said Office of Discount and Deposit, of the said Bank 
in the city of Baltimore, and the said James W. M'Culloh, so being 
Cashier of the said Office of Discount and Deposit, of the said Bank 
in the city of Baltimore, being evil disposed and dishonest per- 
sons, and wickedly devising, contriving and intending, falsely, 
unlawfully, fraudulently, craftily and unjustly, and by indirect 
means to cheat and impoverish the said President, Directors and 
Company of the Bank of the United States, and to defraud them 
of their monies, funds and promissory notes for the payment of 
money commonly called bank notes, and of their honest and fair 
gains to be derived under and pursuant to the said act of Congress, 
from the use of their said monies, funds and promissory notes, for 
the payment of money commonly called bank notes, on the 8th 
day of May, in the year of our Lord 1819, at the city of Balti- 



more, aforesaid, with force and arms, &c. did wickedly, falsely, 
fraudulently and unlawfully, conspire, combine, confederate and 
agree together, by wrongful and indirect means to cheat, defraud 
and impoverish the said President, Directors and Company of the 
Bank of the United States, and by subtle, fraudulent and indirect 
means and divers artful, unlawful and dishonest devices, and prac- 
tices to obtain and embezzle a large amount of money and of pro- 
missory notes, for the payment of money commonly called bank 
notes, to wit, of the amount and value of g 1,500,000 current 
money of the United States, the same being then and there the 
property and part of the proper funds of the said President, Di- 
rectors and Company of the Bank of the United States, from and 
out of the said Office of Discount and Deposit of the said Bank 
in the city of Baltimore, without the knowledge, privity or con- 
sent of the said President, Directors and Company of the Bank 
of the United States, and also without the privity, consent or 
knowledge of the Directors of the said Office of Discount and De- 
posit of the said Bank, in the city of Baltimore, for the purpose of 
having and enjoying the use thereof for a long space of time, to 
wit, for the space of two months, without paying any interest, dis- 
count or equivalent, for the use thereof, and without securing the 
payment thereof to the said corporation. And the more effectual- 
ly and securely to perpetrate and conceal the same, that the said 
James W. M'Culloh should from time to time falsely and fraudu- 
lently state, allege and represent to the said Directors of the said 
Office of Discount and Deposit in the city of Baltimore, that such 
monies and promissory notes so agreed to be obtained and em- 
bezzled as aforesaid, were loaned on good, sufficient and ample 
security in capital stock of the said Bank, pledged and deposited 
therefor ; and also, should from time to time make and fabricate 
false statements and vouchers respecting the same ; and other pro- 
perty and funds of the said corporation, to be laid before and ex- 
hibited to the said Directors of the said Office of Discount and 
Deposit, of the said Bank in the city of Baltimore. And that the 
said George Williams James A. Buchanan and James W. M'Cul- 
loh, being such officers of the said corporation as aforesaid, did 
then and there in pursuance of, and according to the said unlaw- 
ful, false and wicked conspiracy and confederacy, combination and 
agreement aforesaid, by indirect, subtle and wrongful, fraudulent 
and unlawful means and by divers artful and dishonest devices 
and practices, and without the knowledge, privity or consent of 



4 

the said President, Directors and Company of the Bank of the XJ, 
States, and without the privity, knowledge or consent of the 
Dii^ tors of said Office of Discount and Deposit of the said Bank 
in the city of Baltimore, obtain and embezzle a large amount of. 
money and of promissory notes for the payment of money com- 
monly called bank notes, the same being the property and part of 
the proper funds of the said corporation, from and out of their said 
Office of Discount and Deposit, in the city of Baltimore, to wit, 
the amount and value of g 1,500,000 current money of the United 
States, for the purpose of having and enjoying the use thereof, and 
did have and enjoy the use thereof for a long space of time, to 
wit, for the space of two months, without paying any interest, dis- 
count or equivalent therefor, and without securing the payment of 
'the said monies, and the said promissory notes, for the payment of 
money commonly called bank notes ; and did then and there falsely 
craftily, deceitfully, fraudulently, wrongfully and unlawfully keep 
and convert the same to their own use and benefit, without the know- 
ledge, privity or consent of the said corporation, and without the 
knowledge, privity or consent of the Directors of the said Office of 
Discount and Deposit in the city of Baltimore, and did then and 
there the more effectually to perpetrate and conceal the said con- 
spiracy, confederacy, fraud and embezzlement, cause and procure 
false and fraudulent representations, allegations, statements and 
vouchers to be made and fabricated, and the same to be exhibited 
to, and laid before the Directors of the said Office of Discount 
and Deposit, in the city of Baltimore, by the said James W. 
M'Culloh as cashier of the said Office of Discount and Deposit, 
respecting the said monies and the said promissory notes for the 
payment of money so obtained and embezzled as aforesaid, in 
which said representations, allegations, statements and vouchers, 
it was then and there falsely and fraudulently represented, al- 
leged and exhibited, that the said monies and promissory notes 
for the payment of money were loaned on good, sufficient and 
ample security, in capital stock of the said Bank, pledged and 
deposited therefor. When in truth and in fact no capital stock of 
the said Bank, and no other security was pledged or deposited 
therefor, as the said George Williams James A. Buchanan and 
James W. M'Culloh, then and there well knew ; and that the said 
false, wicked, unlawful and fraudulent conspiracy, confederacy 
and agreement above mentioned; and the said false, wicked, un- 
lawful and fraudulent acts done in pursuance thereof above set 



forth, were then and there made, done and perpetrated by the said 
George Williams James A. Buchanan and James W. M'Culloh, 
in abuse and violation of their duty and the trust reposed in them, 
and the oaths taken and lawfully sworn by them respectively as 
such officers of the said corporation aforesaid. And that the said 
George Williams James A. Buchanan and James W. M'Culloh 
did then and thereby, falsely, wickedly, fraudulently, wrongfully 
and unlawfully empoverish, cheat and defraud the said President, 
Directors and Company of the Bank of the United States, to the 
great damage of the said President, Directors and Company, to the 
evil example of all others in like manner offending, and against 
the peace, government and dignity of the state of Maryland, &c. 
And the jurors aforesaid, on their oath aforesaid, do further 
present, that the said George Williams so being one of the Direc- 
tors of said Bank of the United States at Philadelphia, to wit, at 
Baltimore aforesaid ; and the said James A. Buchanan so being- 
President of the said Office of Discount and Deposit, of the said 
Bank, in the city of Baltimore ; and the said James W. M'Culloh 
so being Cashier of the said Office of Discount and Deposit, of 
the said Bank in the city of Baltimore, being evil disposed and 
dishonest persons, and wickedly devising and contriving, and in- 
tending falsely, unlawfully, fraudulently, craftily and unjustly, 
and by indirect means to cheat and empoverish the said Presi- 
dent, Directors and Company of the Bank of the United States, 
and to defraud them of their monies, funds and promissory notes, 
for the payment of money commonly called bank notes, and of 
their honest and fair gains to be derived under and pursuant to the 
said act of Congress, from the use of their said monies, funds and 
promissory notes, for the payment of money commonly called 
bank notes, afterwards, to wit, on the 8th day of May, in the year 
of our Lord 1819, at the city of Baltimore, aforesaid, with force 
and arms, &c. did wickedly, falsely, fraudulently and unlawfully 
conspire, combine, confederate and agree together by wrongful and 
indirect means to cheat, defraud and impoverish the said Presi- 
dent Directors and Company of the Bank of the United States, 
and by subtle, fraudulent and indirect means and divers artful, un- 
lawful and dishonest devices and practices to obtain and embezzle 
a large amount of money and promissory notes, for the payment 
of money commonly called bank notes, to wit, of the amount and 
value of §1,500,000 current money of the United States, the same 
being then and there the property and part of the proper funds of 



6 



the said President, Directors and Company of the Bank of the 
United States, from and out of the said Office of Discount and 
Deposit of the said Bank in the city of Baltimore, without the 
knowledge, privity or consent of the said President, Directors and 
Company of the Bank of the United States, and also without the 
privity, consent or knowledge of the Directors of the said Office 
of Discount and Deposit of said Bank in the city of Baltimore, for 
the purpose of having and enjoying the use thereof for a long 
space of time, to wit, for the space of two months, without paying 
any interest, discount or equivalent for the use thereof, and with- 
out securing the payment thereof to the said corporation ; and that 
the said false, wicked, unlawful and fraudulent conspiracy, con- 
federacy and agreement above mentioned were then and there 
made, done and perpetrated by the said George Williams James 
A. Buchanan and James W. M'Culloh, in abuse and violation of 
their duty, and the trust reposed in them, and the oaths taken and 
lawfully sworn by them respectively as such officers of the said 
corporation as aforesaid, to the great damage of the said President 
Directors and Company, to the evil example of all others in like 
manner offending, and against the peace, government and dignity 
of the state of Maryland, &c. 

LUTHER MARTIN, 
Attorney General of Maryland, and District Attorney of 

Baltimore City Court 
On the back of which said indictment is this endorsement-— 
True Bill, R. K. HEATH, Foreman. 

TRUE COPY, 

test, THOMAS HARWOOD, 

Clerk Baltimore City Court*" 
Another of the indictments was against James A. Buchanan 
and James W. M'Culloh alone. It was founded on the alleged 
appropriation to their own use, by indirect means, of several Bills 
of Exchange, to the amount of £6080 sterling, drawn by various 
persons in the District of Columbia, in favour of Clement Smith 
Cashier of the Farmers' and Mechanics' Bank of Georgetown, and 
by him remitted to J. W. M'Culloh, in payment of a balance due 
from the Bank in Georgetown, to the Branch Bank in Baltimore. 
This indictment is in the following words : 

" State of Maryland, City of Baltimore, to wit : 
"The jurors for the State of Maryland, for the body of the City 
of Baltimore, on their oath present, that by an act of Congress of 



the United States, passed on the tenth day of April, in the year of 
our Lord, one thousand eight hundred and sixteen, at the City of 
Washington, in the first session of the fourteenth Congress, entitled 
"An act to incorporate the subscribers to the Bank of the United 
States," a Bank was established and chartered as a corporation 
and body politic, by the name and style of "The President Direct- 
ors and Company of the Bank of the United States," with author- 
ity, power and capacity among other things to have, purchase, re- 
ceive, possess, enjoy and retain to them and their successors, lands, 
rents, tenements, hereditaments, goods, chatties, and effects of 
whatsoever kind, nature and quality, to an amount not exceeding 
in the whole, fifty five millions of dollars, to deal and trade in bills 
of exchange, gold or silver bullion ; and to take at the rate of six 
per cent per annum for, or upon its loans or discounts, and to issue 
bills or notes, signed by the President, and countersigned by the 
principal Cashier or Treasurer thereof, promising the payment of 
money to any person or persons, his, her or their order, or to bear- 
er. And that under, and by virtue of the power and authority giv- 
en to the said directors by said act of Congress, an Office of Dis- 
count and Deposit of the said corporation was, at the time herein- 
after mentioned, regularly and duly established in pursuance of the 
power contained in said act, at the City of Baltimore, in the State 
of Maryland, aforesaid. And that James A. Buchanan, late of the. 
City of Baltimore, merchant, was at the time hereinafter mention- 
ed, and before and since, President of the said Office of Discount 
and Deposit of the said Bank of the United States, in the City of 
Baltimore; and that James W. M'CuIloh, late of the City of Bal- 
timore, gentleman, was, at the time hereinafter mentioned, and be- 
fore and afterwards Cashier of the said Office of Discount and De- 
posit, of the said Bank of the United States, in *he City of Balti- 
more, to wit, at the City of Baltimore aforesaid. And that the said 
James A. Buchanan, so being President of the said Office of Dis- 
count and Deposit of the said Bank in the City of Baltimore; and 
the said James W. M'Culloh, so being Cashier of the said Office of 
Discount and Deposit, of the said Bank in the City of Baltimore, 
being evil disposed and dishonest persons, and wickedly devising, 
contriving and intending, falsely, unlawfully, fraudulently, craftily 
and unjustly, and by indirect means to cheat and impoverish the 
said President, Directors and Company of the Bank of the United 
States, on the thirty first day of January, in the year of our Lord 
one thousand eight hundred and nineteen, at the City of Baltimore, 



s 

aforesaid, with force and arms, &c. did wickedly, falsely, fraudu- 
lently and unlawfully, conspire, combine, confederate and agree to- 
gether, by wrongful and indirect means to cheat, defraud and em- 
poverish the said President Directors and Company of the Bank 
of the United States; and that, in pursuance of, and according to 
the said unlawful, false and wicked conspiracy, confederacy, com- 
bination and agreement, aforesaid, the said James W. M'Culloh 
did then and there fraudulently, secretly and contrary to the duty 
of his office, give and deliver over to the said James A. Buchanan, 
and the said James A. Buchanan did then and there fraudulently, 
secretly and contrary to the duties of his office, receive and take, 
for the purpose of having and enjoying the benefit and use of the 
same, for a long space of time, to wit, for the space of four months, 
without the privity, knowledge or consent of the said President, 
Directors and Company of the Bank of the United States, and with- 
out the knowledge, privity or consent of the Directors of the said 
Office of Discount and Deposit of the said Bank, at Baltimore, as 
aforesaid, and without securing the payment of the value or amount 
of the same, certain bills of exchange, the number whereof is un- 
known to the jurors aforesaid, drawn upon a certain person or cer- 
tain persons in London, to the jurors aforesaid unknown, to the a- 
mount in the whole of six thousand and eighty pounds sterling, 
lawful money of Great Britain, and equal in value to twenty seven 
thousand twenty -two dollars and twenty -two cents, lawful money 
of the United States; which said bills of exchange, he, the said 
James W. M'Culloch had previously thereto received and taken, 
by virtue of his office of Cashier as aforesaid, in payment of a debt 
which was then and there due to the said President, Directors and 
Company of the Bank of the United States, by the Farmers' and 
Mechanics' Bank of Georgetown, in the District of Columbia, and 
which said bills of exchange w r ere then and there in the custody and 
possession of him, the said James W. M'Culloh, he being such Cash- 
ier as aforesaid, as the property, and part of the proper funds of the 
said President Directors and Company of the Bank of the United 
States; and the more effectually to perpetrate and conceal the 
same, and in further pursuance of the said conspiracy, confederacy, 
combination and agreement, the said James W. M'Culloh did then 
and there, with the knowledge, privity and consent of the said 
James A. Buchanan, cause and procure false and fraudulent alle- 
gations, representations and statements, to be made and fabricated, 
and exhibiting the same to, and lay the same before the Directors 



9 

of the said Office of Discount and Deposit, of the said Bank of the 
United States, in the City of Baltimore, in which said allegations, 
representations and statements, the said Fanners' and Mechanics' 
Bank of Georgetown was designedly and falsely represented as 
owing the aforesaid debt, for the payment of which, the aforesaid 
bills had been previously received and accepted by him, the said 
James W. M'Culloh as aforesaid ; and the same James W. M'Cul- 
loh being such Cashier as aforesaid, fraudulently and wickedly, and 
with the privity, knowledge and consent of the said James A. Buch- 
anan, then and there caused and procured that no entry or notice 
of the receipt of the said bills of exchange, or of the delivery of 
them to the said James A. Buchanan, should be taken or made in 
the books of account of the said Office of Discount and Deposit, in 
the City of Baltimore, and that no credit for the said bills of ex- 
change should be given to the said Farmers' and Mechanics' Bank 
of Georgetown in the said books of accounts ; and that the said false, 
wicked, unlawful and fraudulent conspiracy, confederacy and a- 
greement above mentioned, and the said false, wicked, unlawful 
and fraudulent acts, done in pursuance thereof, above set forth, 
were then and there made, done and perpetrated by the said Jas. 
A. Buchanan, and James W. M'Culloh, m abuse and violation of 
their duty and the trust reposed in them, and the oaths taken and. 
lawfully sworn by them respectively, as such officers of the said 
Office of Discount and Deposit of the said Bank, in the City of Bal- 
timore, as aforesaid ; and that the said James A. Buchanan and 
James W. M'Culloh, did then and there, thereby falsely, wickedly, 
fraudulently, wrongfully and unlawfully empoverish, cheat and de- 
' fraud the said President Directors and Company of the Bank of 
the United States, to the great damage of the said President Direct- 
ors and Company of the said Bank of the United States, to the evil 
example of all others in like manner offending, and against the 
peace, government and dignity of the State of Maryland, &c. 

And the jurors aforesaid, on their oath aforesaid, do further pre- 
sent, that the said James A. Buchanan, so being President of said 
Office of Discount and Deposit of the said Bank in the city of Bal- 
timore as aforesaid ; and the said James W. M'Culloh, so being 
Cashier of the said Office of Discount and Deposit, of the said Bank 
in the City of Baltimore, as aforesaid, being evil disposed and dis- 
honest persons, and wickedly devising, contriving, and intend- 
ing falsely, unlawfully, fraudulently, craftily and unjustly, and 
by indirect means to cheat and empoverish the said President 



10 

Directors and Company of the Bank of the United States, and to 
defraud them of their monies, funds and promissory notes, for the 
payment of money commonly called bank notes, and of their hon- 
est and fair gains, to be derived under and pursuant to the said 
act of Congress, from the use of their said monies, funds and prom- 
issory notes, for the payment of money commonly called bank notes, 
on the 31 st day of March, in the year of our Lord one thousand 
eight hundred and nineteen, at the City of Baltimore aforesaid, 
with force and arms, &c. did wickedly, falsely, fraudulently and 
unlawfully conspire, combine, confederate and agree together, by 
wrongful and indirect means, to cheat defraud and empoverish the 
said President Directors and Company of the Bank of the United 
States, and by subtle, fraudulent and indirect means, and divers 
artful, unlawful and dishonest devices and practices, to obtain and 
embezzle a large amount of money and promissory notes, for the 
payment of money commonly called bank notes, to wit, of the a- 
jnount and value of fifty three thousand dollars, current money of 
the United States of America, the same being then and there the 
property, and part of the proper funds of the said President Direct- 
ors and Company of the said Bank of the United States, from and 
out of the said Office of Discount and Deposit of the said Bank in 
the City of Baltimore, without the knowledge, privity, or consent 
of the said President Directors and Company of the Bank of the 
United States, and also without the privity, consent or knowledge 
of the Directors of the said Office of Discount and Deposit of the 
said Bank in the City of Baltimore, for the purpose of having and 
enjoying the use thereof, for a long space of time, to wit, for the 
space of four months, without paying any interest, discount or e- 
quivalent for the use thereof, and without securing the re -payment 
thereof to the said Corporation ; and that the said false, wicked, 
unlawful and fraudulent conspiracy, confederacy and agreement 
above mentioned were then and there made, done and perpetrated 
by the said James A. Buchanan and James W. M'Culloh, in abuse 
and violation of their duty, and the trust reposed in them, and the 
oaths taken and lawfully sworn by them respectively, as such offi- 
cers of the said Office of Discount and Deposit of the said Bank 
in the City of Baltimore as aforesaid ; to the great damage of the 
said President, Directors and Company, of the Bank of the United 
States, to the evil example of all others in like manner oifending, 
and against the peace, government and dignity of the State of Ma- 
ryland, &c." LUTHER MARTIN, 

District Attorney of Baltimore City Court,- 



a 

On the back of which said indictment is thus endorsed, to wit-r 
True Bill, R. K. HEATH, Foreman. 

TRUE COPY, 

Test, THOMAS HARWOOD, 

Clerk of Baltimore City Court." 

A third Indictment was against the same two persons, James 
A.Buchanan and James W. M'Culloh alone ; and was founded, 
on the appropriation by them to their own use, by indirect means 
as was alleged, of the sum of §25,535 of the money of the Bank, 
under pretence of a Bill for that sum, drawn at sight by James W. 
M'Culloh, on Daniel C. Holliday, in favour of the house of S. Smith 
and Buchanan, of which James A. Buchanan was a member. It 
was alleged that no such bill ever existed. This Indictment is in 
the following words : — 

f \State of Maryland, City of Baltimore, to wit: 

" The jurors for the State of Maryland, for the body of the City 
of Baltimore, on their oath present, that by an act of Congress of 
the United States, passed on the tenth day of April, in the year of our 
Lord, one thousand eight hundred and sixteen, at the city of Wash- 
ington, in the first session of the fourteenth Congress, entitled "an 
act to incorporate the subscribers to the Bank of the United 
States" — A Bank was established and chartered as a corporation 
and body politic, by the name and stile of " the President Direc- 
tors and Company of the Bank of the United States," with au- 
thority, power and capacity among other things to have, purchase, 
receive, possess, enjoy, and retain to them and their successors, 
lands, rents, tenements, hereditaments, goods, chatties and effects 
of whatsoever kind, nature and quality, to an amount not exceeding 
in the whole, fifty -five millions of dollars, to deal and trade in bills 
of exchange, gold or silver bullion ; and to take at the rate of six 
per cent per annum for or upon its loans or discounts, and to issue 
bills or notes signed by the President and countersigned by the 
principal Cashier or Treasurer thereof, promising the payment of 
money to any person or persons, his, her or their order, or to bearer. 
And that under, and by virtue of the power and authority given to. 
the said directors by said act of Congress, an Office of Discount 
and Deposit of the said corporation was, at the time hereinafter 
mentioned, regularly and duly established in pursuance of the pow- 
er contained in said act, at the city of Baltimore, in the state ef 



1% 

Maryland, aforesaid. And that James A. Buchanan, late of the 
city of Baltimore, merchant, was at the time hereinafter mention- 
ed, and before and since, President of the said Office of Discount 
and Deposit of the said Bank of the United States, in the city of 
Baltimore ; and that James W. M'Culloh, late of the city of Bal- 
timore, gentleman, was at the time hereinafter mentioned, and be- 
fore and afterwards Cashier of the said Office of Discount and De- 
posit, of the said Bank of the United States, in the city of Balti- 
more, to wit, at the city of Baltimore aforesaid. And that the said 
James A. Buchanan, so being President of the said Office of Dis- 
count and Deposit of the said Bank in the city of Baltimore ; and 
the said James W. M'Culloh, so being Cashier of the said Of- 
fice of Discount and Deposit, of the said Bank in the city of Bal- 
timore, being evil disposed and dishonest persons, and wickedly 
devising, contriving and intending, falsely, unlawfully, fraudulent- 
ly, craftily and unjustly, and by indirect means to cheat and impo- 
verish the said President, Directors and Company of the Bank of 
the United States, and to defraud them of their moneys, funds and 
promissory notes, for the payment of money, commonly called 
bank notes, on the fourth day of March, in the year of our Lord, 
one thousand eight hundred and nineteen, at the city of Baltimore 
aforesaid, with force and arms, &c. did wickedly, falsely, fraudu- 
lently and unlawfully conspire, combine, confederate and agree 
together, by wrongful and indirect means, to cheat, defraud and 
impoverish the said President Directors and Company of the Bank 
©f the United States, and by subtle, fraudulent and indirect means, 
and divers artful, unlawful and dishonest devices and practices, to 
obtain and embezzle a large amount of money and of promissory 
notes, for the payment of money, commonly called bank notes, to wit, 
of the amount and value of twenty five thousand dollars, current mo- 
ney of the United States, the same being then and there the pro- 
perty, and part of the proper funds of the said President Directors 
and Company of the Bank of the United States, from and out of 
the said Office of Discount and Deposit of the said Bank, in the 
city of Baltimore, without the knowledge, privity or consent ot 
the said President Directors and Company of the Bank of the 
United States, and also without the privity, consent and know- 
ledge of the Directors of the said Office of Discount and Deposit 
of the said Bank in the city of Baltimore, for the purpose of hav- 
ing and enjoying the use thereof, for a long space of time, to wit, 
for the space of two months - 3 and the more effectually and secure? 



43 

Jy to perpetrate and conceal the same, that the' said James W. 
M'Culloh should from time to time, falsely and fraudulently cause 
false entries to be made in the books of the said Office of Discount 
and Deposit, whereby it should be falsely and fraudulently stated 
and represented, and should falsely and fraudulently allege and 
represent to the said Directors of the said Office of Discount and 
Deposit in the city of Baltimore, that such monies and promissory 
notes, so agreed to be obtained and embezzled as aforesaid, were 
loaned on good sufficient and ample security ; and that the said 
James A. Buchanan and James W. M'Culloh being such officers of 
the said Office of Discount and Deposit of the said Bank as afore- 
said, he, the said James A. Buchanan, with the privity, knowledge 
and consent of the said James W. M'Culloh, and without the pri- 
vity, knowledge or consent of the said President Directors and 
Company of the Bank of the United States, and without the know- 
ledge, privity or consent of the Directors of the said Office of Dis- 
count and Deposit, of the said Bank in the city of Baltimore, did 
then and there, in pursuance of, and according to the said unlawful 
false and wicked conspiracy, confederacy, combination and agree- 
ment aforesaid, fraudulently obtain, draw out, take and embezzle, 
for the purpose of applying the same to his own proper use, and 
without securing the repayment of the same promissory notes, for 
the payment of money commonly called bank notes, and monies to 
a large amount in the whole, to wit, to the amount of twenty five 
thousand dollars, lawful money of the United States, the property 
and part of the proper funds of the said President, Directors and 
Company of the Bank of the United States, intrusted to and ma- 
naged by the Directors of their said Office of Discount and Depo- 
sit in the city of Baltimore aforesaid ; and that they, the said James 
A. Buchanan and James W. M'Culloh, the more effectually to per- 
petrate and conceal the same, and in further pursuance of the 
said conspiracy, confederacy, combination and agreement after- 
wards, to wit, on the day and year aforesaid, and at the place afore- 
said, did procure, and cause to be made false entries on the books 
of the said Office of Discount and Deposit, falsely representing, 
and did then and there falsely and fraudulently represent and al- 
lege to the Directors of the said Office of Discount and Deposit of 
the said Bank of the United States, that the said promissory notes 
for the payment of money commonly called bank notes and mo- 
nies were loaned on good, sufficient and ample security, to wit, on 
a draft for the payment of a large sum of money, that is to say, 



14 

a like a sum of twenty -five thousand dollars, drawn by a certain 
commercial firm then carrying on trade and commerce in the city 
of Baltimore, under the name and style of S. Smith and Buchanan, 
upon one Daniel C. Holliday, of the state of Louisiana, pledged 
and delivered therefor, which said draft had been remitted to the. 
Office of Discount and Deposit of the said Bank of the United States, 
in the city of New Orleans, (which said Office last mentioned, was 
then and there legally established at New Orleans, to wit, at Balti- 
more aforesaid) and that the said Office of Discount and Deposit 
last mentioned, was truly and justly accountable therefor, whereas 
in fact and in truth, the said entries so made and procured were 
false ; neither was such draft for the payment of money, nor was 
any other security pledged or delivered therefor, as they, the said 
James A. Buchanan and James W. M'Culloh then and there well 
knew ; and that the said false, wicked, unlawful and fraudulent 
conspiracy, confederacy and agreement above mentioned, and the 
said false, wicked, unlawful and fraudulent acts done in pursuance 
thereof, above set forth, were then and there made, done and per- 
petrated by the said James A. Buchanan and James W. M'Culloh 
in abuse and violation of their duty and the trust reposed in them, 
and the oaths taken and sworn by them respectively, as such of- 
ficers of the said Office of Discount and Deposit, of the said Bank 
as aforesaid ; and that the said James A. Buchanan and James W. 
M'Culloh did then and there, thereby falsely, wickedly, fraudu- 
lently, wrongfully and unlawfully empoverish, cheat and defraud 
the said President Directors and Company of the Bank of the U. 
States, to the great damage of the said President, Directors and 
Company ; to the evil example of all others in like manner offend- 
ing, and against the peace, government and dignity of the state of 
Maryland, &c. 

And the jurors aforesaid, on their oath aforesaid, do further pre- 
sent, that the said James A. Buchanan, so being President of said 
Office of Discount and Deposit of the said Bank in the city of Bal- 
timore as aforesaid ; and the said James W. M'Culloh, so being 
Cashier of the said Office of Discount and Deposit, of the said Bank 
in the city of Baltimore, as aforesaid, being evil disposed and dis- 
honest persons, and wickedly devising, contriving, and intending 
falsely, unlawfully, fraudulently, craftily and unjustly, and by in- 
direct means to cheat and impoverish the said President Directors 
and Company of the Bank of the United States, and to defraud 
ihcm ef their monies, funds and promissory notes, for the payment 



15 

©f money commonly called bank notes, and of their honest and fair 
gains, to be derived under and pursuant to the said act of Congress, 
from the use of their said monies, funds and promissory notes, for 
the payment of money commonly called bank notes, on the 31st 
day of March, in the year of our Lord one thousand eight hundred 
and nineteen, at the city of Baltimore aforesaid, with force and arms, 
&c. did wickedly, falsely, fraudulently and unlawfully conspire, 
combine, confederate and agree together, by wrongful and indirect 
means, to cheat, defraud and empoverish the said President Direc- 
tors and Company of the Bank of the United States, and by subtle s 
fraudulent and indirect means, and divers artful, unlawful and dis- 
honest devices and practices, to obtain and embezzle a large 
amount of money and promissory notes, for the payment of money 
commonly called bank notes, to wit, of the amount and value of 
fifty -three thousand dollars, current money of the United States 
of America, the same being then and there the property, and part 
of the proper funds of the said President, Directors and Company 
of the said Bank of the United States, from and out of the said Of- 
fice of Discount and Deposit of the said Bank in the city of Balti- 
more, without the knowledge, privity or consent of the said Presi- 
dent, Directors and Company of the Bank of the United States, 
and also without the privity, consent or knowledge of the Direc- 
tors of the said Office of Discount and Deposit of the said Bank in 
the city of Baltimore, for the purpose of having and enjoying the 
use thereof, for a long space of time, to wit, for the space of two 
months, without paying any interest, discount or equivalent for 
the use thereof, and without securing the repayment thereof to the 
said corporation ; and that the said false, wicked, unlawful and frau- 
dulent conspiracy, confederacy and agreement above mentioned 
were then and there made, done and perpetrated by the said James 
A. Buchanan and James W. M'Culloh, in abuse and violation of 
their duty, and the trust reposed in them, and the oaths taken and 
lawfully sworn by them respectively, as such officers of the said Of- 
fice of Discount and Deposit of the said Bank as aforesaid ; to the 
great damage of the said President, Directors and Company, of the 
Bank of the United States, to the evil example of all others in like 
manner offending, and against the peace, government and dignity 
of the state of Maryland, &c. 

LUTHER MARTIN, 
District Attorney of Baltimore City Court. 



16 

On the back of which said indictment is thus endorsed, to wit — 
True Bill, R. K. HEATH, Foreman. 

TRUE COPY, 

test, THOMAS HARWOOD, 

Clk. Baltimore City Court" 

It will_be remarked, that each of these Indictments contains 
two counts ; one charging the offence in a more particular, and the 
other in a more general manner. 

The Indictments being found, and the parties bound in recog- 
nizances to answer to the charges, they filed an affidavit on the 
19th day of February, 1820, alleging that they could not have a 
fair and impartial trial in the City Court of Baltimore. On this af- 
fidavit they applied to the Court, for the removal of the records to 
an adjoining county for trial, pursuant to a provision of the Consti- 
tution ; and an order was made on the same day, for their removal 
to the Harford County Court, to be held at Belle Air, on the se- 
cond Monday of March following. 

It was not till March or April, 1821, that these cases could be 
brought on at Belle Air. The Traversers (so the parties accused 
are styled, in criminal cases less than felony) demurred to the In- 
dictments. Mr. Murray the Prosecutor for the State joined in the 
Demurrers, and the cases were very fully argued on the points of 
law. Mr. Murray was assisted by Mr. Wirt, Attorney General of 
the United States, Gen. Harper and Mr. Mitchell. Mr. Pinkney, 
Gen. Winder, Mr. Kell, Mr. Maulsby and Mr. Archer, were of 
counsel with the Traversers. 

The objections relied on in support of the demurrers were two- 
fold. First, that the Courts of the state had no jurisdiction of the 
case; because the alleged offence, if committed at all, appeared by 
the record to have been committed by officers of the Bank of the 
United States, in relation to their official duties; and secondly be- 
cause this offence consisted in a conspiracy to cheat; and as cheat- 
ing itself was not an indictable offence, unless effected by means of 
false tokens, which were not charged by these indictments to have 
been used, a conspiracy to cheat could not be indictable. 

After a very full elaborate and extensive argument, in reply to 
these objections, and in support of them, the Court sustained the de- 
murrers on the second ground, giving no opinion on the first; and 
pronounced judgement for the traversers. From this decision Mr, 



17 

Dorsey the Chief Judge dissented. The decision was supported by 
Mr. Hanson and Mr. Ward the Associate Judges in a written 
opinion, which will be found in the Appendix, No. 1. 

Judge Dorsey also stated at length the grounds of his dissent, 
in a written opinion, which he filed in Harford Court. A copy of 
it from the record, marked No. 2, is contained in the Appendix, 

Mr. Murray, the prosecutor for the state, sued out writs of er- 
ror in all the cases, by which they were removed to the Court of 
Appeals at June term, 1821. Mr. Williams, then Assistant Attor- 
ney General,* withdrew from the prosecution, with the approbation 
of the court, on account of his relationship to one of the traversers; 
and Mr. Murray was appointed to conduct it in the court of Ap- 
peals. He immediately applied for writs of scire facias ad audiefi- 
dura errores, against all the Traversers, which were ordered, and 
made returnable within the term. On the return of these writs the 
Traversers appeared, and an adjourned meeting was appointed in 
December, 1821, for the argument of all the cases. 

In December, accordingly the argument came on. Mr. Pink- 
ney, Gen. Winder and Mr. Raymond were counsel for the Traver- 
sers ; and Mr. Murray for the state was again assisted by Mr. 
Wirt, Gen. Harper and Mr. Mitchell. 

Four objections were taken on the part of the Traversers. First, 
that no writ of error lies for the state, in a criminal case. — Second- 
ly, that these writs of error were not regularly sued out. — Thirdly, 
that the state court had no jurisdiction of the case, for the reasons, 
urged in the first argument on the Demurrers. And Fourthly, that 
the acts charged in these indictments, did not amount to indictable 
offences. 

The court consisted (of Mr. Chase, the chief judge, Mr. Buch- 
anan, Mr. Earle and Mr. Martin. 

Mr. Dorsey having taken part in the decision below, could not 
sit ; and as Mr. Johnson had then accepted the office of Chancel- 
lor, his seat was vacant.! 

After hearing Mr, Murray and Mr. Mitchell on the part of the 
state, and all the counsel for the Traversers, the court declared 



* He had been appointed under a special act of Assembly, on account of 
the indisposition of Mr. Martin. 

jit is to be remarked that the court of Appeals is composed of the 
Chief Judges of the six Judicial Districts, into which the state is divided*-— 
One of them is commissioned us Chief Judge of this court. 

4 



18 

themselves satisfied on the two first points, and directed that the 
reply should be confined to the two last; which embraced the ques- 
tion of jurisdiction, and the question of crime. 

At the conclusion of General Harper's argument in reply, they 
declared themselves satisfied on the point of jurisdiction, and de- 
sired Mr. Wirt, who was to close the case for the state, to confine 
himself to the question of crime. On the close of his argument, the 
Chief Judge declared it to be the unanimous opinion of the court, 
that all the objections were untenable, and that the judgement be- 
low ought to be reversed. 

The opinion w r as afterwards delivered at length by judge Buch- 
anan, and will be found in the Appendix, marked No. 3. 

After the judgment of reversal was pronounced, Mr. Murray 
moved for writs of procedendo in all the cases, to remove them 
back to Harford County Court for trial. Some doubt at first exist- 
ed, as to the power of the court of Appeals to award a procedendo 
in cases of that description ; but the court after hearing counsel, 
and taking time for consideration, sustained the motion. Writs of 
procedendo, Ordering the County Court of Harford to proceed to 
trial, were accordingly awarded and issued. 

On their being returned and filed in that court, at March term, 
1822, Thomas B. Dorsey, esq. then Attorney General, moved on 
the part of the state, for process to bring in the Traversers. Mr, 
Dorsey, the Chief Judge, was absent, through indisposition ; and 
the associate Judges, Mr. Hanson and Mr. Ward, were divided in 
opinion on this motion. Mr. Ward was in favour of the motion — 
but Mr. Hanson refused it, because, as is understood, he thought 
that the court of Appeals had no power to award a procedendo.— 
It was consequently lost. At a subsequent period Judge Dorsey 
attended ; when the court being full, the motion was renewed and 
prevailed. 

At August term, 1822, George Williams appeared and offered 
ready for trial; claiming a right to be tried separately from James 
A. Buchanan and James W. M'Culloh, who were included with 
him in the same indictment. It was resolved by the court that the 
parties in such an indictment had a right to be tried separately : 
and that as the other Traversers were not yet before the court, 
George Williams might insist on having his trial immediately ; un- 
less the Attorney General could shew sufficient ground for a con- 
tinuance. This was done by proving the absence of a material 
witness, who had been summoned ; and the case, together with all 
the others, was continued to March term, 1823. 



la 



At that term George Williams did not attend in person, being 
confined by sickness; but James A. Buchanan and James W. 
M'Culloh appeared, plead not guilty to all the three indictments, 
and put themselves upon the court for trial, instead of the jury, un- 
der the act of November, 1809 — ch. 144. This act enables all per- 
sons presented or indicted, for any offence whatever, to transfer 
their trials from the jury to the court, on the plea of not guilty : and 
authorises the court to decide on the whole merits of the case.* — • 
The court on the application of the Traversers, and with the con- 
sent of the Attorney General, had waited two days for the arrival 
of some of their witnesses, who did not attend when first called.— 
On the 21st of March they attended, and the Traversers, James 
A. Buchanan and James W. M'Culloh declared themselves ready 
for trial in the case No. 44, which was the indictment against Buch- 
anan M'Culloh and Williams, founded on the stock loans. The 
Attorney General had the right to take up first whichever of the 
cases he thought proper; but he gave them their choice, and they 
chose this. He was assisted by General Harper, Mr. Mitchell 
and Mr. Murray. The counsel for the Traversers were General 
Winder, Mr. Kell, Mr. Archer Mr. Maulsby and Mr. Raymond. 

These gentlemen, who were also counsel for George Williams, 
expressed a willingness that he should be put on his trial at the 
same time ; to which the Attorney General acceded. But Judge 
Dorsey doubted whether he could be legally tried in his absence. 



* This singular act, constituting' a perfect and most dangerous anomaly 
in the law, provides "that it shall and may be lawful for any person present- 
ed or indicted, to submit to the court at his or her discretion, and the court 
to which such case shall be submitted is hereby authorised and empowered 
to decide on the whole merits of the case ; which submission shall not be 
considered as an admission of the fact, either to find the person so submit- 
ting guilty of the offence charged, or charge him or her with the costs of the 
prosecution, if not guilty of the offence." It plainly and completely substi- 
tutes the court, acting by a mere majority, for a jury in all criminal cases 
whatever, at the option of the party indicted. Up to this time it had been 
uniformly confined in practice, to those cases of petty offence, with a view 
to which alone it was no doubt enacted.f This it is believed is the first in- 
stance in which it has been applied to an offence of the higher class. Its 
true nature character and tendency having now been made known, it may 
be expected that its repeal or material modification, will be among the first 
cares of the Legislature. 

t The general impression among the few persons who recollected or had 
ever been apprized of its existence, probably was, that it was so confined in 
its terms, 









30 

The other two Judges were of a different opinion ; and the counsel 
for this Traverser were told that he might be put on his trial, at the 
same time with the others. They however, on further reflection, 
declined this course; and the trial proceeded against Buchanan 
and M'Culloh alone. 

The Attorney General stated the substance of the indictment, 
and presented a general outline of the evidence, by which it was to 
be supported. The Traversers, he said, were charged in substance 
with a combination or conspiracy, with fraudulent views, to get 
the money of the Bank to a large amount into their hands, by false 
and fraudulent devices, or indirect means, with intent to keep it 
two months without paying interest. The gist or essence of the 
offence, he observed, lay in the combination to effect this unlawful 
purpose, which the law and the indictment call "an embezzlement," 
by false pretences and deception, by which the law denominates 
"indirect means." The use which they intended to make of the 
money was wholly immaterial, and might have been omitted. It 
was no part of the offence, but merely the motive which induced 
them to commit ihe offence — The advantage which they expected 
to derive from its perpetration. The object, or intended use of the 
money, need not therefore be proved ; but he apprehended that it 
would be clearly proved, by the testimony which he had to adduce; 
from which he believed it would appear that these parties, as to a 
large part of the money which they took from the bank, never in- 
tended to pay interest — Certainly on a large part of it interest nev- 
er was paid. 

As to the conspiracy, he added, which was the gist and essence 
of the offence, it must be fully proved; as well as the false and 
fraudulent devices by which the object was to be effected. 

But on the nature of the proof it was important to observe, that 
direct or positive proof of a combination or agreement was not to be 
required. From the very nature of the case, such proof of a con- 
spiracy could hardly ever be adduced ; because witnesses were 
rarely suffered to be present at the making of such combinations. 
They must be made out by circumstances and inferences. Where 
the parties appeared to understand each other, and to act in con- 
cert for the attainment of a common object, a combination might 
be inferred. It was not necessary that they should act together, 
or that any direct intercourse between them should appear. It 
need not even exist. It was enough if they understood each other 
and played into each others hands ; each performing his particular 
part in the general scheme. 






m 

In this respect, indeed, the proof of a conspiracy did not differ 
from that of any other offence, or of any other fact to be establish- 
ed before a jury — For in no case, criminal or civil, was a jury tied 
up to positive or direct proof. In all cases they might decide by 
inferences, properly drawn from facts in proof. This was what 
the law called presumptive evidence ; on which the great excellence 
and benefits of the trial by jury mainly depended. 

Having said thus much of the nature of the charge, and the gen- 
eral mode of proof, he proceeded to present a brief statement of the 
facts which "he expected to establish. 

After proving, he said, the incorporation and organization of 
the Bank of the United States, and of its Branch or Office of Dis- 
count and Deposit in Baltimore, he should give evidence of the 
appointment of the traversers Buchanan and W'Culloh as Presi- 
dent and Cashier of the Branch ; the former officer being appoint- 
ed by the Directors of the Branch, and the latter, the Cashier, by 
those of the parent bank. He should then prove the appointment 
of the traverser George Williams, as a director of the parent bank. 
Having established these preliminary facts, he should produce the 
bye-laws and resolutions of the parent board, which had relation 
to this subject ; and then proceed to prove by witnesses, and the 
books and records of the Branch Bank, that in August 1817, soon 
after the resolutions of the parent board authorizing the Offices of 
Discount and Deposit, commonly called the Branch Banks, to grant 
loans on pledges of the stock of the bank, the house of S. Smith and 
Buchanan, of which the traverser Buchanan was the active part- 
ner, engaged with the traversers M'Culloh and Williams, in a very 
extensive speculation in the stock of the bank, for the purposes of 
carrying on which they drew from the Baltimore branch very large 
sums, at different times, to the amount in the whole of more than 
1,540,000 dollars, on notes drawn and endorsed by themselves, 
and in some instances not endorsed at all. That all these notes 
were discounted by the traversers Buchanan and M'Culloh, by 
their own authority, on pretence of pledges of stock which never 
were made, and which they never had it in their power to make, 
to any thing like the amount of the loans ; rating all their stock 
at the highest advance, at which the branches had ever been per- 
mitted to grant loans on stock. That when some of the directors 
of the branch manifested a disposition, to enquire into the particu- 
lars of these loans, they were informed by the traversers, Buchan- 
an and M'Culloh, that it was executive business, confided to the 



S3 

president and cashier, with which the branch directors had nothing 
to do : That all further enquiry was thus prevented, and the loans 
went on ; the notes being from time to time renewed, as the con- 
venience of the parties required ; or their amount being included 
with the interest or a large part of it, in new notes of the same 
description : That this operation was continued and extended till 
12th November, 1818, when the last renewals took place, on notes 
bearing date on the 2d of that month, and amounting to more than 
1,540,000 dollars, of which a considerable part arose from dis- 
counts on former renewals, left unpaid, and included from time 
to time in the new notes : That a little before this time the parent 
board began to feel some alarm, about the state of stock loans in 
the Baltimore Branch, and passed a resolution in general terms, 
which was calculated to draw forth explanations on the subject : 
That to evade this call, and conceal the real state of these loans, a 
false entry was made in the books of the bank, by the express or- 
der of the traverser M'Culloh, the cashier, and false statements 
were made, at a subsequent period, by him and the traverser 
Buchanan, which they presented to the parent board, and which," 
corresponding with the false entry, were calculated and intended 
to conceal the true amount of these loans on pretence of stock, and 
to represent the greater part of them as having been made in the 
usual manner, by discounts on endorsed notes, approved by the 
branch board : That at length the true nature and extent of the 
business came to light, when the traversers came to a settlement 
with the parent bank, and gave such security as was in their power 
for the sum of 1,540,000 dollars, being a part only, though much 
the greater part, of what they owed : and that finally, the security 
having proved greatly insufficient, the bank lost nearly one half of 
this immense sum, consisting of the principal and in part of the 
interest of the loans thus obtained from them, without their con- 
sent or that of the branch directors, their agents for such purposes. 

This he said was a general and brief outline of the case, as it 
would appear on the proof; which he would now proceed to ad- 
duce. 

The witnesses for the state were then called and sworn. 

The Attorney General first offered evidence of the incorpora- 
tion establishment and organization of the parent bank, and of the 
organization of the Baltimore branch : but these facts were all ad- 
mitted, on the part of the traversers ; as were also the appoint- 
ments of George Williams a$ a director of the parent bank, and 



23 

of James A. Buchanan as president, and James W. M'Culloh as 
cashier of the Baltimore branch. These three appointments took 
place in 1816, and the traversers continued in their respective 
situations till sometime in May 1819. It appeared that James 
W. M'Culloh was removed on the 20th May 1819; on which day 
he was succeeded by John White, the present cashier. 

The Attorney General then gave in evidence and read the 4th 
and 5th articles of the rules and regulations of the parent bank, 
for the government of the offices of Discount and Deposit, which 
regulate the appointment and prescribe the duties of the cashiers. 
They are as follows : 

"Art 4. The Directors of the Bank of the United States shall 
appoint the Cashiers of the Offices of Discount and Deposit." 

"Art 5. It shall be the duty of the Cashier, carefully to observe 
the conduct of all persons employed under him, and report to the 
board such instances of neglect, incapacity, or bad conduct as he 
may discover in any of them ; daily to examine the settlement of 
the cash account of the office; take charge of the cash, and 
whenever the actual amount disagrees with the balance of the 
cash account, report the same to the President and Directors 
without delay ; to attend all meetings of the board ; keep a fair 
and regular record of its proceedings; give such information to the 
board as may be required ; consult with committees when request- 
ed, on subjects referred by the board; and also to perform such 
other services as may be required of him by the board." 

He also produced and read the 12th, 14th, 15th and 16th arti- 
cles, which relate to discounts, and run thus : 

"Art 12. There shall beat least one discount day in each week, 
when the Directors shall be assembled; a majority of the members 
shall be required to form a quorum, except for the purpose of set- 
tling discounts, for which five shall constitute a quorum, and no 
bill or note shall be discounted the unexpired term of which 
exceeds sixty days." 

"Art 14. All bills and notes offered for discount shall be laid 
before the Board of Directors by the Cashier on the days assign- 
ed for discount, together with a statement of the funds and situa- 
tion of the office, for their information." 

" Art 1 5. Discounts shall not be made upon personal securitv 
without two responsible names (the firm of a house being consid- 
ered as one name only;) but if stock of the Bank of the United. 
•States.. Funded Debt of the United States, or such other propertv as 



£4 

shall be approved by the board, be deposited and pledged to an 

amount sufficient to secure the payment, with all damages, one 

responsible name may be taken. But no accommodation note (i. e. a 

note, the proceeds of which are to be placed to the credit of the 

drawer) shall be discounted, unless its payment be secured by a 

deposit of the Stock of this Bank, or of Funded Debt of the United 

States, or such other property as shall be approved by the board ; 

together with an express authority to the bank to sell the deposit in 

case of non-payment at any time after the note shall become due." 

"Art. 1 6. On each application for discount, every Director who 

may be present, shall be held to give his opinion for or against the 

same. And no discount shall be made without the consent of three 

fourths of the Directors present; and all notes and bills discounted 

shall be entered in a book, to be called The Credit Book, in such 

manner as to discover to the board, at one view, on each discount 

day, the amount which any person is discounter, or is indebted to 

the office, either as payer or as endorser." 

He then gave in evidence the lTth article relative to over- 
drawings, in the following words : 

"drt. 1 T. On every discount day, the name of every person who 
shallrhave overdrawn the office since the last discount day shall be 
reported to the board ; and no person while he remains an over- 
drawer, shall have any note or bill discounted by the offices. And 
in no instance will this bank give a release or discharge to any 
debtor when the debt arises from an overdraft. And every officer 
who shall knowingly suffer an overdraft to be made on the office, 
without communicating it to the President and Cashier, shall be 
dismissed from the service of the office." 

The resolutions of the parent board of December 18th and 
27th, 1816, July 25th and August 26th, 1817, October 20th, 1818, 
and of January 22d and February 1st and 19th, 2819, were then 
produced and read in evidence, from the original minute book of 
the bank, proved by Peter Benson, one of the clerks, who attended 
for that purpose. They are as follow : 

"December, 18, 1816. 
{ 'M a meeting of the Directors of the Bank of the United States, 
on Wednesday the \Sth December, 1816, it was 
Resolved, That on the thirty -first instant the board will pro- 
ceed to discount notes or bills having not more than sixty days to 
run, and made payable to the Bank of the United States, secured 



25 

by a deposit of an equal amount of the stock of this bank, or an 
equal amount in public debt, at 90 per cent upon the par* value 
thereof, with power to sell and transfer the said stock and debt, in 
default of payment, when due, of the notes which may be discount- 
ed as aforesaid ; and that the respective boards of directors of the 
Offices of Discount and Deposit at Boston, New York and Balti- 
more, be authorized to discount in like manner upon the same terms 
and conditions, and to an extent not exceeding one tenth of the 
amount of the subscriptions to the capital of the bank at their res- 
pective places. 

From the minutes, 

JONA. SMITH, Cash'r." 

27th December, 1816. 
k Rebolved, That the loan which may be efFectedj in conformity 
to the resolution of this Board passed on the 1 8th instant, be regu- 
lated in the following manner; and the President and Cashier be au- 
thorised to accept notes for the purposes therein mentioned, from 
day to day, from the 31st instant to the 23d January ensuing inclu- 
sive, upon the terms and conditions stipulated in the resolution 
above mentioned [to restrict the discount of 10 per cent, on the sub- 
scription exclusively to stockholders, or to withhold the same alto- 
gether, as circumstances, &c. may require] and in the manner here- 
in directed. 

1st. The loan to be effected for the accommodation of the stock- 
holders exclusively, and to the Amount of their respective propor- 
tions of the payments in coin, on account of the second instalment of 
the capital of the Bank. 

2d. The Notes to be accepted shall all be dated on the 1st day 
of January next, and payable 60 days after date, including the inter- 
est thereon. 

3d. That the stock to be deposited as a security for the payment 
of the notes, shall be transferred in trust to the Cashier of this bank, 
or to the Cashiers of the Offices of Discount and Deposit respective- 
ly, and their successors in office; and the discounters shall be re- 
quired to sign a special agreement, stating the terms and conditions 
of the loan; and authorizing the President and Directors forthwith 
to sell the pledge, in such manner as they shall deem most advan- 
5 



tageous, immediately upon the failure'to paj the notes on the last 
clay of grace, in specie or bills of this bank. 

4th. And the loan before mentioned shall be made only to stock- 
holders paying in full the second instalment on the shares by them 
respectively held in this bank. 

July 25th, 1817. 

The following Preamble and Resolution was adopted: — 

Whereas it may be convenient and desirable to stockholders 
of the Bank United States, or other persons holding funded debt of 
the United States, to obtain temporary loans upon their notes, made 
payable to the Cashier of the Office of Discount and Deposit at the 
place of their residence, and secured by a pledge of stock of this 
bank, or funded debt of the United States at the par value thereof, 
equal to the amount of the required loan : Be it therefore 

Resolved, That the offices of this Bank be respectively author- 
ized to grant such loans, until otherwise ordered by this Board; — . 
that the weekly statements of such offices shall exhibit the amount 
of such loans, distinct from the amount of bills and notes discount- 
ed; and that blank powers of attorney to transfer and sell the stock 
or debt so pledged, in conformity to the powers used for similar 
loans obtained of this bank, but with such modifications as the sub- 
stitution of the. offices for_ the bank may require, be transmitted to 
the offices respectively for that purpose. 

26th August, 1817. 

On motion, Resolved, That the substitution of money in lieu 
of funded debt, in the payments to the capital stock of this Bank, 
and the redemption of upwards* of thirteen millions of the funded 
debt proportion of the capital stock, by the Commissioners of the 
Sinking: Fund, renders it necessarv to extend the discounts of the 
bank in proportion to the increase of themonied capital, in order to 
afford a reasonable dividend to the stockholders; that as no better 
security can be offered thanthes tock of the bank, at a safe and rea- 
sonable valuation; and as there is good reason to believe that the 
banks in New York and elsewhere have ftoaned upon the stock of 
this bank at the rate of §120 per share, and perhaps more, and of 
course that little or none can, under the existing regulations, be ex- 
pected to be offered to this bank, when the actual market value is so 
much above par; therefore it is expedient that the loans on the stock 
of the bank be extended to the rate of g 125 per share, upon notes 
to that amount, ivith two approved names. 
Extracts from the Minutes. 

JAMES HOUSTON, Ass't. Caskr." 



87 

"October 20th, 1818. 

"Resolved, That the Cashier be directed to prepare and lay 
before this board, a statement of the existing discounts upon notes, 
for the payment of which public or corporate stocks of any kind 
may have been pledged, together with a list of the said notes, the 
names of the drawers and endorsers, and the amount and descrip- 
tion of stock pledged for the payment of the said notes respective- 
ly : also that it be the duty of the Cashier, to require of the Cash- 
iers of the respective offices, whose statements exhibit any such 
discounts, a like statement, list and description. 

Resolved, That the Cashiers of the respective offices, at which 
discounts on the collateral security of stock of this bank may have 
been granted, be instructed to inform those who may have borrow- 
ed, at a rate exceeding the par value thereof, that a reduction of 
twenty -jive per cent of the excess will be required every 60 days, 
until the whole of the said excess shall be extinguished ; or that 
any such borrower may at his option, pledge such an additional 
amount of the funded debt of the United States, or Stock of this 
bank, at the par value thereof, as shall be equal to the amount of 
such excess. 

Resolved, That it shall be the duty of the Cashier of this bank, 
to give notice to the respective borrowers of this bank, on endors- 
ed notes discounted on the collateral security of the stock of this 
bank, for any amount exceeding the par value thereof — that the 
said amount will be required to be paid or secured, in the manner 
prescribed in the preceding resolution." 

"22nd January, 1819. 
" Whereas it is expedient to prevent any improper transfers of 
the Stock whereby the security for the debts to the Bank might 
be lessened, therefore 

" Resolved, That no discount shall be made or renewal on 
stock, or any other discount or any substitution of a note or hypo- 
thecation made or renewed at this Bank, or any of its Offices of 
Discount and Deposit, without each discount or renewal being first 
presented to the Board of Directors of this bank or its offices, as 
the case may be, and approved by the Board of Directors, agreea- 
ble to the Bye Laws ; and that any resolution authorizing discounts 
in any other manner, be and the same is hereby repealed, and that 
a copy of this resolution be forthwith transmitted to each of the of- 
fices of Discount and Deposit." 






28 

"February 1st, 1819. 

"1st. Resolved, That no new loan shall be made on stock of 
any kind, at this bank or any of its offices. 

2nd. That in no case when a loan has been made on the stock 
of this bank, shall a transfer of such stock be made but with the ap- 
probation of the Board of Directors, of the bank or office where 
the loan was made ; nor unless at least ten per cent of the amount 
thereof be paid to the bank or the office at which such loan was made. 

3rd. That no transfer shall be effected upon any stock, upon 
which a greater amount than the par value shall have been dis- 
counted, until such excess shall have been paid off or secured to 
the satisfaction of this board, or the board of that office from which 
the discount was obtained. 

4th. That on and after the 9th inst. a reduction of not less than 
five per cent shall be made, on all notes offered for renewal, which 
notes shall have been discounted on the stock of this bank, at this 
bank : and that a like reduction be made at all the offices of Dis- 
count and Deposit of this bank, to commence in ten days after the 
receipt of this resolution ; unless a reduction; equal to, or greater 
than the above named five per cent, shall have been volu ntarily 
made on such notes, before they are presented for renewal." 

"February 19th, 1819. 
"Resolved, That the Cashier of the Office of Discount and De- 
posit at Baltimore be, and he is hereby required to transmit to this 
board, as early as practicable, a list of all the notes now discounted 
at that office, with the names of payer and endorser on each note ; 
also designating in said list all notes which are discounted with an 
hypothecation of stock, for securing the payment of such notes ; 
and also designating the kind of stock, and the rate at which such 
stock has been hypothecated ; together with a copy of the instru- 
ment of writing, by which such hypothecations have been made." 

The ledgers containing the customers' accounts of the Branch 
at Baltimore were then produced and offered in evidence, to prove 
the discounts obtained by the Traversers. To this it was objected, 
that the ledgers were not the acts of these parties, nor the original 
evidence of the transactions to which they related. But a notice 
to the Traversers being given in evidence, to produce their bank 
books, and the ori«;inal notes which had been discounted and taken 
up ; and it being also proved by P. Janvier one of the book keepers, 
who had settled the bank book of 8. Smith and Buchanan on the 
19th January 1819, that it corresponded with the ledger ; this ob- 




m 

jection was waived : and it was finally agreed, that all the original 
books of the Branch should be received in evidence, for both par- 
ties, and might be introduced and used as wanted. 

John White, the present Cashier, was then called and examin- 
ed by the attorney general. From his testimony and that of the 
book keepers, who were examined at the same time, and by refe- 
rence to the books of the Branch Bank it appeared : 

That on the 12th of August, 1817, a note of S. Smith & Buch- 
anan at 90 days, for §540,000 without any endorser, was discount- 
ed for them, as a note secured by a pledge of stock. This note fell 
due on the 10th and 13th of November. That is, it fell due on the 
10th ; but three days of grace being allowed, it was not payable 
till the 13th. 

That on the 13th of November 1817, another note drawn by 
them for §548,594 64 at 90 days, and endorsed by George Wil- 
liams was discounted for them as a stock note, being obviously 
the renewal of the note of August 1 2th, with the discount or inte- 
rest included : this note, including the days of grace, was payable 
February 14th 1818. 

That on the 14th of February 1818, another note was discount- 
ed for S. Smith & Buchanan, for §550,000 at 90 days. This note 
also was endorsed by George Williams, and was discounted as a 
stock note, or a note secured by a pledge of stock. It seemed to 
be a renewal of the note of November 1 3th, of which no further 
trace could be discovered ; but it included a part only of the inte- 
rest: and that this note of February 14th, although not payable till 
the 1 7th or 1 8th of May, was taken up and extinguished on the 2d 
of March. 

Mr. White stated that this note of §540,000, with its renew- 
als, made no part of the stock arrangement, in which the Traver- 
sers engaged about the same time, and which was the subject mat- 
ter of the present trial. That transaction he then proceeded to 
explain, in the following manner ; with the assistance of the book- 
keepers and the original books. 

It embraced a series of loans, on stock notes, or notes represent- 
ed as being secured by pledges of stock, for each of the three Tra- 
versers. 

Those of Buchanan were in the name of S. Smith & 

Buchanan, and commenced on the 5th August 1817, by a 

Class note of S. Smith & Buchanan, endorsed by Dennis A. 

No. 1 . Smith, for §30,000, at 90 days, which was discounted for 



30 

them on that day ; and renewed for the same sum on the 6th of 
November, with the endorsement of the Traverser George Willi- 
ams, for 90 days. On the 8th of February 1818, this note was 
again renewed, for the same sum, at 90 days, by their note without 
any endorser; which was payable on the 11th May 1818. This 
note of August 5th, 1817, with its renewals, formed Class No. 1, 
in the series of S. Smith and Buchanan. 

The second Class commenced on the 13th of June 
Class 18i7;when a draft of Lemuel Taylor tor 839,500, at 90 
No. 2. days, on M'Ewen Hall & Davidson of Philadelphia, in fa 

vour of S. Smith & Buchanan and endorsed by them, was 
discounted for their account. This loan was renewed on the 11th 
Sept. following, by the note of S. Smith & Buchanan at 90 days, for 
the same sum without any endorser. This note was discounted for 
them as a stock note. On December 13th 1817, it was renewed 
for the same sum, at 90 days, with the endorsement of the Traver- 
ser James W. M'Culloh; and on the 16th of March 1818, it was 
again renewed by James W . M'Culloh's note at 90 days, for the 
same sum, endorsed by S. Smith & Buchanan. This terminated 
the second class. 

The third commenced on the 30th of August, 1817, 
Class when the note of Hollins and M 'Blair, at ninety days for 
No. 3. S280,000, and endorsed by S. Smith and Buchanan, was 

discounted for them as a stock note. 
It was renewed on the 1st of December, 1817, by a note of Geo. 
"Williams for S2S5,000, at ninety days, endorsed by S. Smith and 
Buchanan, and on ^aa 3d of March 1818, it was again renewed, with 
the same drawer and endorsers, at sixty da}*s for S28S,000. These 
two renewals included interest to the amount of S8,000. 

And on the 5th of May, 18 18, this note was again renewed, with 
the same drawer and endorsers, at five months, for the same sum 
of S288,000, which terminated the third class. 

The fourth commenced on September 5th 1817, and 
Class was confined to one note for § 165,000, at ninety days. 
No. 4. This note was drawn by George Williams and endorsed 

by S. Smith and Buchanan, for whose use it was discount- 
ed as a stock note. 

The fifth class was also confined to one note, for 
Class $47,000, at ninety days ; which bore date on the 1 1th of 
No. 5. September, 1817, drawn by George Williams, endorsed by 

S. Smith and Buchanan and discounted as a stock note for 
their use. 



31 

The sixth class commenced on the Cth of December, 
Class 181 7, with a note of that date for 821 5,000, at ninety days, 
No. 6. drawn by George Williams, endorsed by S. Smith and 
Buchanan, and discounted for them. 
It appeared to be a renewal of No. 4, for §165,000, and No. 5, 
for 8*7,000, making together 82 1 2,000, which, with the addition 
of 83000, apparently for part of the interest, made up 8215,000, the 
amount of this new note. 

It was renewed on the 9th of March, 1818, for sixty days, with 
the same drawer and endorsers, and the addition of 82,000, appa- 
rently for part of the interest ; so as to make the new note amount 
to 8217,000. This completed the sixth class. 

The seventh consisted of a note for 8247,000, bearing 
Class date on the 1 1th of May, 1818, drawn by S. Smith & Buch- 
No. 7. anan at five months, and discounted for them without any 
endorser. It appeared to be a renewal and continuation 
of No. 1, for 830,000, and No. 6, for 8217,000, which both fell due 
on that day. 

The eighth class commenced November 21st 1817, 
Class with a note of that date for 8^8,000, drawn by S. Smith 
No. 8. and Buchanan at ninety days, endorsed by George Willi- 
ams and discounted for the drawers as a stock note. It 
was renewed for the same sum, and with the same drawers and en- 
dorser, on the 21st of February, 1818, for sixty days: and again 
on the 25th of April, 1818, for thirty days, which completed this 
class. 

The ninth Avas composed of a single note, at sixty days, 
Class for S21,000 c drawn on the 17th of April, 1818, by James 
No. 9. W. M'Culloh, endorsed by S. Smith Sf Buchanan, and dis- 
counted for them as a stock note. 

The tenth commenced on the 22d of August, 1817, 
Class with a note of that date for 8215,000, at ninety days, drawn 
No. 10. by S. Smith & Buchannan, and discounted for them as a 
stock note, without an endorser. 
It was renewed with the addition of 83,000, apparently for in- 
terest, on the 22d of November, 1817, by a note of George Wil- 
liams, at sixty days, in favour of S. Smith & Buchanan and, endor- 
sed by them, for 8218,000. This last note was again renewed, on 
the 23d of February, 181 S, by a note at sixty days, drawn and en- 
dorsed as the former, with the addition of 832,000 ; so as to raise it 




to §250,000— and on the 27th of April, 1818, this note"of §250,000 
was renewed for the same sum, by a note at thirty days, with the 
same drawers and endorsers. This completed the 10th class. 

The eleventh consisted of a note for §370,500 dated 
Class on the 26th of May 1818, and drawn by George Willi- 
No. 11. ams at 6 months, in favor S. Smith & Buchanan, by whom 
it was endorsed. It was discounted for them. 
To renew Class No. 2, for § 39,500 
No. 8, 48,000 

No. 9, 21,000 

No. 10, 250,000 

35^,500 

and it included an additional sum as a 

new loan on stock of 12,000 



-8370,500 



Class The twelfth class embraced six notes, all bearing 

No. 12. date on the 2nd of November 1818, at 4 months — 

1. Drawn by S. Smith & Buchanan and endorsed by 

George Williams, §11,426 77 

2. Drawn by S. Smith & Buchanan and endorsed by 

George Williams and James W. M'Culloh, - 325,000 00 

3. Drawn and endorsed as the second, - - 314,000 00 

4. Drawn and endorsed as the second, - - 25,000 00 

5. Drawn and endorsed as the second, - - 97,875 00 

6. Drawn and endorsed as the second, - - 25,000 00 



Making a total amount of - - - - §798,301 77 
These six notes, bearing date on the 2nd day of November 1818, 
were discounted for S. Smith & Buchanan on the 12th of that 
month, and appeared to be renewals, as far as they went, of the 
preceding classes. No. 3, for §288,000 

No. 7, for 247,000 
and No. 11, for 370,500 
in one or other of which all the other classes had centered.— 
These three classes amounted to § 905,500 — but at the same peri- 
od an accommodation appeared to have been given, through these 
parties, to Richard M. Johnson of Kentucky, to the amount of 
§107,198 23. For this sum a note called a stock note was taken 
from him, drawn also on the 2nd November 1818, at 4 months, and 
endorsed by S. Smith & Buchanan and George Williams. This 
note was discounted as a stock note, and the proceeds were carri- 



33 

ed to his credit. By a check from him they were transferred to 
that of S. Smith & Buchanan, and being deducted from $905,500, 
the amount of Classes 3, 7 and 1 1 , left $798,301 77, for the amount 
of S. Smith & Buchanan's share of the Stock Loans, as renewed 
and continued on the 12th of November, upon six notes of the 2d 
of that month. 

The Witness then proceeded to explain in the same manner, 
James W. M'Culloh's share of this transaction. 

It commenced on the 5th September 1817, when his note 
Class of that date at 90 days, endorsed by S. Smith & Bucha- 
No. 1. nan for $15,000, was discounted for him as a stock note. 
It was successively renewed for the same sum, and with 
' the same drawer and endorsers, on the 7th of Dec. 1817, and on 
the 10th of April and the 14th of August 1818. Each renewal was 
for four months ; after which it assumed a new form. This was 
the first class in the series of discounts for James W. M'Culloh. 

The second commenced on the 7th of October, 1817 a 
Class when a note of that date for $15,000, at sixty days, drawn 
No. 2. by himself and endorsed by S. Smith & Buchanan, was 
discounted for him as a stock note. It was successively 
renewed for four months each time, to the same amount, and with 
the same drawer and endorsers, on the 9th of December, 1817, and 
on the 11th of April and the 14th of August, 1818: after which 
it took a new form. 

The third class commenced with a note at sixty days, 
Class dated on the 23d of October, 1 817, and drawn by Nathan- 
No. 3. iei F. Williams for $25,000, in favour of James W. M'Cul- 
loh, by whom it was endorsed. It was discounted for him 
as a stock note, and successively renewed for the same sum five 
several times. — First on the 24th of December, 1817, for sixty days; 
then on the 26th of February, the 29th of June and the 2d of Nov, 

1818, for four months each time; and finally on the 2d of March, 

1819, for sixty days. Each of these renewals was with the same 
endorser, except that of November 2d, 1818, which was without 
any endorser. 

The fourth class consisted of a note of December 

Class 29th 1817, for $46,000, at four months ; which was drawn 

No. 4. by James W. M'Culloh and endorsed by S. Smith and 

Buchanan. It was discounted for M'Culloh as a stock 

note, and renewed for seven months, with the same drawer and 

6 



34 

endorsers, and for the same sum, on the 2d of May, 1818. It after- 
wards took another shape. 

The fifth class consisted of a note for $15,300, drawn 
Class on the 6th of January, 1816, at four months, by James W» 
No. 5. M'Culloh in favour of S. Smith & Buchanan, by whom and 
George Williams it was endorsed. 
It was discounted as a stock note for James W. M'Culloh, and 
renewed on the 9th of May, 1818, for the same sum, at six months. 
This renewed note was also drawn by M'Culloh, in favour of S. 
Smith & Buchanan, by whom it was endorsed, but not by George 
"Williams. After this renewal the note assumed a new form. 

The sixth class was composed of a credit given to James 
Class W. M'Culloh, on the 15th of January, 1818, for $56,303 22, 
No. 6. as the amount of his note endorsed by S. Smith & Buchan- 
an. This was called a stock note , but no rate of discount 
or time of payment was stated, nor did it appear to have been ever 
renewed. 

The seventh class commenced in a note of January 
Class 30th 1818, for $5 1,000, at sixty days, drawn by James 
No. 7. W. M'Culloh, and endorsed by George Williams and S. 
Smith & Buchanan. It was discounted for M'Culloh as a 
stock note, and renewed on the 3d of April, 1818, for the same sum 
and length of time, and with the same drawer and endorsers. 

The eight class consisted of a note for $50,000, drawn 
Class on the 7th of March, 1818, at sixty-three days, by James 
No. 8 8 W. M'Culloh, and endorsed by S. Smith & Buchanan and 
George Williams. It was discounted for James W. M'Cul- 
loh, as a stock note ; and on the 12th of May, 1818, it was renewed 
for six months, with the same drawer and endorsers, and for the 
same sum. It afterwards took a different form. 

The ninth class consisted of a note of April 1 6th 1818, 

Class for $113,000, at sixty days. It was drawn by James W. 

No. 9. M'Culloh and endorsed by S. Smith & Buchanan, and 

was discounted for M'Culloh as a stock note. It was 

not renewed in this form. 

The tenth class consisted of a note of James W. 
Class M'Culloh, for $25,000, at sixty days. It bore date on the 
No. 10, 17th of April, 1818, and was made payable to S. Smith and 
Buchanan, by whom it was endorsed. This note was al- 
so discounted as a stock note, for James W. M'Culloh, but not re- 
renewed in the same form. 



30 

The eleventh class contained a note of .April 20th 
Class 1818, for 811,000, at thirty days. It was drawn by Jas. 
No. 11. W. M'Culloh, for whom it was discounted as a stock note, 
with the endorsement of S. Smith & Buchanan. On the 
23rd of May it was renewed for four months, in the same form 
and for the same sum. It afterwards assumed a different shape. 

The twelfth class consisted of a note of 860,000, at 
Class SO days, bearing date on the 24th of April 18 1 8, and drawn 
No. 12 by James W. M'Culloh, for whom it was discounted as a 
stock note, with the endorsement of S. Smith and Buchan- 
an. It did not appear to have been renewed in the same form. 

The thirteenth class contained a note of 850,000 at 7 
Class months. It bore date on the 2nd of May 1818, and was 
No. 1 3. drawn by James W. M'Culloh, in favour of S. Smith & 
Buchanan, by whom and George Williams it was endors- 
ed. It was discounted for James W. M'C ulloh as a stock note, 
but not renewed in the same form. 

The fourteenth class was a note of April 17th 1818, 
Class at 6 months, for 83,499 33. It was drawn by James W. 
No. 14. M'Culloh, endorsed by S. Smith & Buchanan, and dis- 
counted for M'Culloh as a stock note, on the 4th, of May 
1818. On the 20th of October it was renewed at 6 months, for 
the same sum, and with the same drawer and endorser. After 
this it assumed a new form. 

Class The fifteenth class comprised the renewals, on the 

No. 15. 26th of May 1818, of the following notes, viz. 
Class No. 7, 851,000 

v 9, m,ooo 

" 10, 25,000 

" 12 60,000 



Consolidated into one note of 8249,000 at 6 months. 

This note is drawn by James W. M'Culloh, and endorsed by 
S. Smith & Buchanan and George Williams. It was discounted 
as a stock note for M'Culloh to effect these renewals. 

The sixteenth class includes six notes, all dated on 
Class the 2nd of November 1818, at 4 months, and discounted 
No. 16. on the 12th of that month for James W. M'Culloh, as 
stock notes : viz. 
No. 1, endorsed by S, Smith and Buchanan, 8 15,000 00 
2, do. by the same persons, - - 1 12,500 00 



36 



2, do. by George Williams, - 156,600 00 

4, do. by the same person, - - 156,723 23 

5, do. by the same person, - 52,041 66 

6, do. by the same person, - - 7,136 12 



To the total amount of $499,001 01 

These notes Mr. White stated, appeared to be renewals of part 
of those already detailed — viz. 

Of Class No. 4, for $ 46,000 00 



5J 


5, 


15,300 00 


?? 


6, 


56,303 22 


» 


8. 


50,000 00 


?? 


11, 


11,000 00 


;> 


13, 


50,000 00 


5J 


14, 


3,499 33 


and » 


15, 


which 


)s. 7, 9, 


10, 12, 


249,000 00 



Making a total for these eight Classes of $481,102 55 
To which appeared, he said, to have been added a 
note of S. Smith & Buchanan, for $10,898 46, dated 
October 2nd 1818, at 12 months, and endorsed by 
James W. M'Culloh as Cashier. It was first dis- 
counted for S. Smith & Buchanan as a stock note ; 
but seemed to have been assumed by M'Culloh as 
a part of his portion, in the great settlement of No- 
vember 2, 1818, 10,898 46 



Added to the other notes comprised in the eight clas- 
ses, it produced a total of - - - $492,001 01 
But this total fell $7,000 short of the amount of the notes of 
Nov. 2nd, 1818, discounted for renewal on the 12th of that month, 
which was $499,001 01. From whence it seemed to result, that 
in these renewals interest to the amount of $7,000 was included. 
The seventeenth class consisted of a note for $20,000, 
Class bearing date December 26th 1818, and drawn at three 
No. 17. months by James W. M'Culloh, for whom it was discount- 
ed as a stock note, on the 14th of January 1819, with the 
endorsement of S. Smith & Buchanan. 

Thus it appeared that M'Culloh's part of this operation amount- 
ed to the sum of $574,001 01— viz. 



37 

Class No. 1, $ 15,000 00 
" 2, 15,000 00 

" 3, 25,000 00 

" 16, 

including Nos. 4, 5, 6, 8, 11, 13, 14 and 15, which 

last included No. 7, 9, 10 and 12 - - - - 481,102 55 

Class No. 17, 20,000 00 
and the note of SI 0,898 46 transferred from S. Smith 
& Buchanan to M'Culloh, in the final adjustment 

of Nov. 2nd, 1818, 10,898 46 

with the interest included in the renewal on that day, 7,000 00 



Total, $574,001 01 

The witness, Mr. White, then proceeded to explain in the same 
manner, from the books and with the assistance of the book-keep- 
ers, George Williams's part of this stock operation ; which was 
more simple and much less in amount. 

It commenced on the 20th of October 1817, when 
Class George Williams's note of that date, for $90,000, at 90 
No. 1. days, was discounted for him as a stock note, without any 
endorser. It was renewed in the same manner, and to the 
same amount, on the 23rd of January 1818, for 60 days. On the 
27th of March 1818, it was again renewed, in part, to the amount 
of $70,000, for 60 days, with the endorsement of James W. M'Cul- 
loh. And on the 29th of May this last note was further renewed, 
with an increase of $17,500, by a note of George 'Williams at 6 
months, for $87,500 with the endorsement of Amos A. Williams. 
This was the first class of George Williams's part. 

The second consisted of a note of May 5th, 1818, 
Class drawn by George Williams, for $57,333 33, at 40 days, 
No. 2. and discounted for him as a stock note, with the endorse- 
ment of Amos A. Williams. On the 30th May 1818, it 
was renewed in the same manner, and to the same amount, for 6 
months, with the same drawer and endorser. 

The third class comprised a note of Richard Hyatt 
Class for $25,000, dated on the 24th of May 1818, at 4 months, 
No. 3, and discounted for him as a stock note, with the endorse- 
ment of George Williams ) by whom it appears afterwards 
to have been assumed. 



38 

The fourth was a note of November 2nd, 1818, at 4 
Class months, for 8169,833 34, drawn by George Williams, and 
No. 4. discounted for him on the 12th of the same month, with 
the endorsement of Amos A. Williams, to renew the three 
preceding classes; which amounted together to that sum, and made 
up George Williams's part of the stock operation. 

The witness then recapitulated the results of the final arrange- 
ment, made bj the Traversers of this stock operation, on the 2d and 
12th of November, 1818, by the division of the whole debt among 
themselves, and the consolidation of their respective notes. The 
proportion of 

S. Smith & Buchanan, as thus adjusted, was g798,301 77 
That of James W. M'Culloh - - - 574,00101 
That of George Williams - - - - 169,833 34 



Making a total of - - - - . - 1,542,136 12 
He then stated that soon after his appointment to the office of Cash- 
ier, which took place on the 20th of May 1 8 1 9, he called on the Tra- 
verser M'Culloh for the notes constituting this mass of debt, which 
did not appear in the Bank: whereupon M'Culloh delivered to him 
a number of notes at 60 days, amounting together to the sum last 
stated, but all bearing date on the 7th of May 1819, instead of the 
2d of November 1818. These notes he produced, and they were 
given in evidence. 

He also presented a list of them, which follows: 
List of Notes held by the Office of Discount and Deposit of Balti- 
more which are comprised in the late arrangement entered into 
by the Bank of the United States and Messrs. S. Smith <$* Buch- 
anan, George fVilliams and J. W. M'Culloh. 



Date. 


Time. 


Payers. 


Endorsers. 


Amount. 


1819 










May 7. 


60 days 


S. Smith &. Buchanan^ 


G. Williams 8c J. 
M'Culloh, 


W. 

$112,500 00 


« 


tt 


a 


« 


25,000 00 


tt 


tt 


Geo. Williams, 


S. Smith & B. 


156,723 23 


tt 


tt 


S. Smith & B. 


G, Williams, 


11,426 77 


u 


tt 


a 


a 


10,000 00 


tt 


tt 


Geo. Williams, 


S. S. &B. 


10,000 00 


ft 


tt 


S. S, & B. 


Geo. W. 


97,875 00 




g423,525 00 



39 

Date. Time. Payers. Endorsers. Amount. 

1819. Amount brought forward. $423,525 00 

May 7. 60 days. G. W. A. A. Williams 169,833 34 

52,041 66 
" S. Smith 8c B. Geo. Willi- 
ams & G. W. M'Culloh, favor of J. W. M'C. 325,000 00 
« G. WiUiams, S. S. & B. 8c J. W. M'C 155,600 00 

" S. S. & B. G. W. 25,000 00 

« a W. S. S. Sc B. 12,500 00 

« S. S. & B. G, W. 12,500 00 

" «* " 15,000 00 

« G. W. S. S. 8c B. 15,000 00 

S. S. 8c B. G. W. 15,000 00 

S. S. 8c B., G. W. and J. 

W. M'C. J. W. M'C. Cashier, 314,000 00 

" S. S. 8c B, G. W. J. W. M'C. 

part of $7,136 12 5,000 00 



1,540,000 00 
Fractional part carried to general account, 2,136 12 

% gl,542,136 12 



It would be remarked, Mr. White said, that the last note in 
this list was carried out as a note of $5,000, when in fact it was 
for 87,136 12. This he said was done at the request of James W. 
M'Culloh, who stated that it was necessary, in order to reduce the 
total amount to 81,540,000, and make it agree with the statement 
of the debt, which he and the other Traversers had presented to 
the parent board. He at the same time requested the witness, to 
charge this fraction of S2,136 12 equally to the parties, in their se- 
perate accounts; which was done. Thus their joint debt, arising 
out of the stock note transaction, was reduced to % 1,540,000. 



* The notes of Nov. 2nd, 1818 being at 4 months, fell due on the 2nd and 
5th March 1819. Those contained in this list, which vary from the former 
in some of the particular sums, and in the whole number of the notes, but 
agree precisely in the total amount, present the appearance of renewals 
made on the 7th of May 1819. They must however have been made after 
the 20th of May, and anti-dated ; for Mr. White proved, that when he took 
possession of the office, on that day, no such notes were there. There was 
no evidence or appearance of any renewal on the 5th of March; but if they 
had been then renewed, at 60 days, the renewed notes would have fallen 
due on the 7th of Mav. 



40 

Mr. White then observed, in answer to a question by the Attor- 
ney General, that at the time of delivering these notes, each of the 
parties was largely indebted to the bank, on a distinct^and separate 
account. These accounts he proceeded to state in the following 
manner : 
I. S. Smith & Buchanan's separate Debt, 

1 note endorsed by George Williams - - $3 5,000 00 

2 " Hollins & M'Blair, - - 34,757 56 

3 " Calhoun & Matthews, - 42,000 00 

4 « Lemuel Taylor, - - 15,000 00 

6 overdra wings, 39,916 92 

7 proportion of interest on stock notes* - 10,859 62 

8 proportion of balance remaining due on a spe- 

culation in foreign bills,** - - - 2,120 50 



Making a total of $179,654 60 



II. James W. M'Culloh's separate debt. 

1 Overdrawings, 814,011 47 

2 proportion of interest on stock notes,* - - 10,859 62 

3 two notes of S. Smith & Buchanan's, discount- 

ed for him, 20,500 00 

4 proportion of balance on the speculation in Fo- 

reign bills** 3,285 10 



Making a total of £48,656 19 



III. George William's separate debt. 

1 notes endorsed by Amos A. Williams, - $89,000 00 

2 " S. Smith & Buchanan, - 68,889 13 

3 ■ J. W. M'Culloh, - - 31,500 00 

4 overdrawings, - - - - - 13,539 12 

5 proportion of interest on stock notes* - 10,859 62 



Making a total of $213,787 87 



*This was their proportion ofthe interest on the whole mass of stock notes 
of November 2d 1818, from the 5th of March, 1819, when they fell due, till 
the 10th July 1819, when those substituted for them, and bearing date on the 
7th of May, 1819, became payable. 

**This operation is fidly explained, in the evidence 'under the third in- 
dictment; where it was relied onto support the general count. 






u 



He then recapitulated these separate debts as follows : 
S. Smith & Buchanan, - - g 179,654 60 

James W. M'Culloh, - - 48,656 19 

George Williams, - - - 213,787 87 



Total, 8442,098 66 
To which he added the stock note or joint 

debt, 1,540,000 00 



Making a grand total of SI, 982,098 66f 
This concluded the evidence as to the origin progress and ex- 
tent of the transaction, that formed the ground of this indict- 
ment.;!: 

The Attorney General then observed, that having thus shewn 
the sums obtained from the bank by these persons, he would next 
proceed to shew how they were obtained. It would appear, he said, 
that in obtaining them the Traversers proceeded in direct violation 
of their duty, and of the orders of the Parent Board; and with- 
out the consent or knowledge of the Branch Board, whom they al- 



f It is to be remarked that these parties were chargeable, each for one? 
third, with the sum of J§2136 12, deducted as explained above, from th.' to- 
tal amount of the stock notes ; which was to be carried to their separate ac- 
counts, in equal parts, but was omitted by Mr. White in his statement of their 2 
separate debts ; probably because his attention was not called to it at the, 
time, by any particular question. It also appeared in the course of the trials, 
that S. Smith & Buchanan were separately chargeable with g>27,953 62, be- 
ing" the amount of sterling- bills of exchange for £6080, which were remitted 
by a bank in Georgetown, to pay a balance due to the Baltimore branch, and, 
appropriated by James A. Buchanan to the use of the association ; and that 
S. Smith &. Buchanan and James W. M'Culloh were chargeable in different 
proportions, with the further sum of $-'5,535, taken from the bank under 
colour of a bill of exchange on Daniel C. Holliday. But these two transactions, 
make the subject of the second and third indictments, and therefore were 
not taken into these accounts by Mr. White. With the fraction of $21 36 12 
deducted from the stock notes, as explained above, they make an aggregate 
of §55,624 74; which added to the joint debt on slock notes, as finally ad- 
justed, and to the aggregate of separate debts, produces a mass of §2,037, 
723 40, obtained by these persons from the bank, in various ways. 

}Mr. White afterwards prepared at the request of one of the counsel for 
the state, succinct statements of these stock notes, and their ultimate renew- 
als, which give in a small compass a very clear view of the whole operation. 

They are inserted here, for the better and more easy understanding- of 
the subject. 

.7 



m 

leged they w ere not bound to consult, and whom they deceived and 
kept in ignorance of the nature of their proceedings, by misrepre- 
sentations and false pretences. 

He would first recal to the recollection of the court, the reso= 
lutions of the Parent Board which had been given in evidence ; and 
especially those of July 25th, 1817, and August 26th in the same 
year, which prescribed the terms on which loans on pledges of stock 
might be made by the Offices of Discount and Deposit, and clear- 
ly confined the authority to the several Boards of Directors. 

He would then prove, in the first place, that all these notes, 
Constituting this great mass of debt, were discounted as " Stock 
Notes," or notes secured by pledges of the stock of the bank ; and 
were constantly so represented to the Directors, by the Traversers 
Buchanan & M'Culloh. 



Si Smith & Buchanan's proportion of the notes constituting the Stock arrange* 
ment appear to have originated thus— and to have been finally renewed thu$ ~ 

August 5, 1S17, 30,000 

Sept. 5, 1817, 165,000 
« 4, 1317, 47,000 



Became March 9, 1818, 217,000 

Became May 11 1818, 247,000 

June 13 1817, 39,500 

Nov. 21 1817, 48,000 

April 17 1818, 21,000 

August 22, 1317, 215,000 became 250 000 



And these four notes became 370,500 

August 3.0 1817, 280,000 became 288,000 

In all 905,500 
Deduct note of R» M. Johnson, endorsed S. 

Smith & Buchanan and Geo. Williams, 107,198 23 



798.301. 77 
Which amount was finally renewed by notes dated Nov. 2, 1S18, 11,426 77 

" * 325,000 00- 
" " 314,000 00 
25,000 00 
<{ « 97,875 00 
« « 25,000 00 

$798,301 77 



*8 

The first witness examined for this purpose was Andrew B. 
Bankson, a discount clerk of the Branch Bank; who proved, that 
in the regular and usual course of discounts, all note3 ottered for 
discount are entered, as they are presented, in a book called "the 
Offering Book," which is laid before the board of directors, together 



J. W. M Culloifs proportion of 'the notes constituting- the Stock arrangement ap- 
pear to have originated thus— and to have been finally renewed, 
Sept. 5 1817 §15,000 thus, $15,000 00 

Oct. 7, 1817 15,000 15,000 00 

23, 1817 25,000 25,000 00. 



Jan'y 3d, 1817, 51,000 






April 24, 1 SI 8, 60,000 






" 16, 1318, 113,000 






17, 1818, 25,000 






These four notes were renewed 






May :6 1818 


§249,000 




Dec. 29 1817 


46,000 




January 6 1813 


15,300 




15 1818 


56,303 22 




March 7 1818 


50,000 




April 20 1818 


11,000 




May 2 1818 


50,000 




April 17 1818 


3,499 33 




These eight notes amount to 


481,102 55 




to which add a note dated 2nd Oct. 






1818, placed previously to the 






credit of'S. Smith & Buchanan, 


10,898 46 




In all 


g492 s 001 01 




which nine notes were renewed as 


follows encreasing the 




amount $7,000 November 2, 1318, 


155,600 00 




t( 


156,723 23 




tt 


15,000 00 




tt 


52,041 66 




tt 


112,500 00 




« £ 


7,136 12 


January 14-, 1819, 


111 all 


20,000 00 




$574,001 01 


• Deduct fractioi 


ial part of this note, 


2,136 12 




§571,864 89 



44 

with the notes, on every discount day, and consequently furnishes 
them with a list of all the notes offered for discount on each day, 
in the regular course: That up to the 12th of Aug. 1817 all notes 
offered for discount, whether on stock or personal security, were 
entered indiscriminately in this "Offering Book," making one list 
for each discount day : That on the 12th of August 1817, the prac- 
tice began of making two lists or lines in the Oifering Book ; one 
for stock notes, and one for notes on personal security ; which prac- 
tice continued till the 26th of December 1817, when a separate Of- 
fering Book was introduced for notes on personel security, con- 
taining them and none other : That the old or former Offering Book 
continued to be used, as an " extra discount book," in which were 
entered all the notes offered for discount and discounted on stock: 
and that the regular Offering Book was always laid before the direc- 
tors on every discount day, up to the 26th of December 1817, when 
a separate Offering Book, for notes on personal security, was intro- 
duced ; after which time the " extra Discount Book," containing 
the stock notes, was never laid before the board. 

The witness further proved, that all notes discounted are re- 
turned to the discount clerk, who endorses and files them ; after 
which they are posted in the Discount Ledger which is called the 
" Credit Book," and the net proceeds are carried to the credit of 
those persons who have obtained the discounts : And that in this 
* f Credit Book" they are described as " Stock Notes," or notes on 
personal security, as the case may be ; with a statement of the dates, 
the periods of payment, and the names of the drawers and endor- 
sers. 

These books were then produced proved and examined. They 
exhibited all the notes in question, as well as that of August 12th 
1817, for $540,000 and its renewals, as " Stock Notes," made dis- 
counted and from time to time renewed, as such. 

The Attorney General proceeded to state, that he would next 
prove, that no stock whatever had been in fact pledged for these 



George Williams*s proportion of the notes constituting the Stock arrangement ap* 

pear to have originated thus — and to have been finally renewed thus : 
October 20, 1817, 90,000 00 

May 5, 1818, 57,333 33 

and a note of R. Hyatt, 25,000 00 

And these three notes were finally renewed Nov. 2, 1818, §169,833 34 



45 

notes, thus discounted as stock notes. For this purpose he again 
called Mr. White the Cashier. Mr. White proved that soon after 
he took possession of the office as Cashier, in May 1819, the papers 
and effects of the bank which had been in the custody of his prede- 
cessor James W. M'Culloh, were handed over to him by a commit- 
tee of the direotors, consisting of David Warfield, Isaac Edmond- 
son and James Beatty : (the two first of whom died before the trial) 
That among the effects thus delivered to him there was no stock 
pledged to the bank, in any manner, by all or either of the Tra- 
versers, for any of these notes : That the only pledge of stock, by 
any of the Traversers, that ever was delivered to him, consisted of 
thirty four shares only, in the name of James W. M'Culloh, which 
had been pledged by him for a loan of $3,400, for his separate ac- 
count, on his own note without an endorser, and made no part of 
the great stock transaction in question : That the statement of the 
effects handed over to him, by which the transfer was made, shew- 
ed no stock hypothecated by any of the Traversers to secure loans 
on stock, except these 31 shares : That while the committee were 
engaged in this transfer, which occupied them from the 20th of May 
till about the 7th of June 1819, a list was made out of all the stock 
notes found among the effects of the bank, with an account annex- 
ed to each note of the stock pledged for it, which list he produced : 
And that when the whole mass of notes, making up the aggregate 
sum of SI, 542, 1 36 12 was delivered to him by James W. M'Cul- 
loh, as stated in the former part of his testimony, some of them, to 
the amount of $645,400, were designated by M'Culloh as stock 
notes, for which reason they were placed as stock notes on this list ; 
but there being no stock found in the bank to represent them, a me- 
morandum of that fact was annexed to them in the list, by one of 
the members of the committee. Of the notes thus marked he gave 
the following specification. 

One of g 52,011 66 

169,833 34 

" 97,875 00 

10,000 00 : 

10,000 00 

" 11,426 77 

156,723 23 

" 25,000 00 

And « 112,500 00 



Making a total of g 645,400 06 




4ft 

James Beatty was next examined. He proved that he was a 
director of the Baltimore branch, at the time when the effects of 
the bank were delivered over by a committee of the Board, to John 
White, the new cashier. That this committee was composed of 
David Warfield and Isaac Edmondson, both deceased, and himself; 
and that no stock pledged for any of the notes making part of the 
mass of gl ,542, 136 12, was found in the bank, to the best of his 
knowledge and belief. The list of stock notes mentioned by Mr. 
White was then produced to him; and he proved that the memo- 
randum "no stock in this office for these notes," which appeared on 
the face of it, annexed to the notes enumerated from it by Mr. 
White, was made by David Warfield, one of the deceased mem- 
bers of the committee, during the delivery, which occupied several 
days. 

The Attorney General then proceeded to offer evidence, that 
all the notes thus discounted for the Traversers as stock notes, to 
the amount of §1,542,136 12, without any pledge of stock whate- 
ver, were discounted by James A.Buchanan and James W. M'Col- 
loh themselves, as President and Cashier, without the sanction or 
knowledge of the Branch Board ; and that some of the directors, 
when they shewed a disposition to enquire into the affair, were gi- 
ven to understand by these persons, that the discounting of stock 
notes was executive business, confided solely to them, with which 
the board had nothing to do. 

For this purpose he again called Andrew B. Bankson, who was 
discount clerk at the time when these notes were discounted and 
renewed. He swore that notes offered for discount as stock notes, 
during that period, were not laid before the board. 

John White the Cashier, was next examined on this point. He 
proved that he was a director of the Baltimore Branch in 1 818 and 
1819 ; and that no notes offered for renewal, on pledges of stock, 
or purporting to be so, were submitted to the board while lie was a 
member of it, until, as he thought, about the month of January 1819, 
when the order came from the parent board, expressly requiring it 
to be done : That none of the notes in question, to the best of his 
recollection and belief, were so submitted even then : That he al- 
ways understood before that order was received, that the discount- 
ing of such notes, for renewal or otherwise, was executive busi- 
ness, and as such committed by the Parent Board to the President 
and Cashier of the branch: That notes offered for discount, on 
stock security, appeared by a reference to the books, to have been 



47 

entered indiscriminately in the offering book, with notes on perso- 
nal security, until the 12th of Aug. 1817; after which they were still 
entered in the same book, but in a separate line or list, until the 
27th of December in that year ; when a separate offering book for 
notes on personal security appears to have been introduced, and 
the old offering book became an extra discount book, for notes dis- 
counted by the President and Cashier as stock notes, as well as 
for those which they discounted on personal security : That these 
last appear to have been to a large amount : That the statement 
book was laid on the table of the Directors on every discount day : 
That the notes entered in it, as having been discounted on pledges 
of stock, were in a seperate line from those on personal security ; 
That he generally had the. credit book before him ; but neither that 
book nor any other shewn to the Directorsj as far as he knows, made 
any mention or took any notice of the number of shares pledged 
for the respective loans on stock, or any of them ; so as to inform 
the Directors of the rate, whether at par or above it, at which the 
loans were made. 

James Beatty was again called and examined as to this point. 
He swore that he became a Director of the Baltimore Branch on 
or about the 1st day of December, 1817, and continued so until 
on or about the 27th of November, 1820: That during this period 
of three years, he attended the meetings of the board very regular- 
ly and constantly ; not having been absent to the best of his recol- 
lection and beiief, from more than three meetings : That while he 
was a member of the board he knew nothing of what was done in 
stock loans, previous to the order of January 1819, forbidding them 
•xpressly to be made without the consent of the Directors : That 
on one occasion, shortly after his appointment, while the board was 
in session, he was directed to look into an individual's account in 
the ledger, and remarked to the board that the amount of notes dis- 
counted was very high, stating the sum ; upon which he was told 
by Lemuel Taylor, that he was mistaken in the amount. He repli- 
ed that if there was truth in figures he was right, for that he had 
added it up. The same person then came round, and looking at 
the addition told him that he was wrong, for that he had included 
the stock notes, with which the board had nothing to do : That 
James A. Buchanan and James W. M'Culloh were then present, 
and made no objection to this statement: That up to the order of 
January 22d, 1819, he recollects no instance of a stock note, or one 
purporting to be such, being submitted for discount er renewal to 






48 

the Branch Board ; but always understood that such discounts and 
renewals had been committed by the parent board, as executive 
business, to the President and Cashier of the Branch : and that he 
had no recollection of any of the notes in question having been sub- 
mitted to the board, either before that time or after. 

R. L. Colt was next examined. He proved that he became a 
director of the Baltimore Board, at its first organization in Novem- 
ber, 1816: That he attended the meetings of the Board very regu- 
larly, except at times when he was occasionally absent from Balti- 
more, and paid particular attention to the business: That after 
some time early in August, 1817, he thinks the 10th or Jith.no 
stock notes to the best of his recollection and belief, were ever sub- 
mitted to the Board, for discount or renewal ; until some time in 
January, 1819, when an order of the Parent Board was received, 
forbidding them to be made without the consent of the Directors : 
And that on making enquiry at the Board, on the subject of such 
loans, he was told by both James A.Buchanan and Jas. W. M'Cul- 
loh, the President and Cashier, that it was executive business, with 
which he, as a Director, had no concern : On one occasion he was 
told> that he might, with as much propriety, go down stairs and en- 
quire into the affairs of the Union Bank* He did not recollect 
whether this observation was made by the President or Cashier; 
but had an impression that it was by the Cashier. He also stated 
that such enquiries were several times repeated, and the same an- 
swer always given ; that it was executive business, with which the 
Directors had nothing to do ; which he took occasion once, and 
perhaps oftener, in Philadelphia, to communicate to some of the 
members of the Parent Board. He added in answer to a question 
by the Attorney General, that he felt very confident that none of 
the notes now in question, were ever submitted to the Board, either 
for original discount or renewal. 

The next witness examined on this point was George Hoffman; 
who proved that he was a Director of the Branch Bank in Balti- 
more, from sometime in December, 1 816, to the latter part of No- 
vember, 1818; and that from early in August, 1817, the Board of 
Directors, to the best of his knowledge and belief, was never con- 
sulted about stock loans, which never came before, them ; That the 
rio-ht of loaning on stock was uniformly claimed and exercised by 
the President and Cashier, as executive business: That he never 



* The Branch Bank was carried on in an upper story of the building oc- 
cupied by the Union Bank, 



49 

knew or heard of the Branch Board having given them such a pow- 
er, but always supposed that they derived it from the Parent Board; 
and that he never understood or supposed that any loan was grant- 
ed by them on stock, above par, until after he became a Director of 
the Parent Bank, in the beginning of January, 1819. 

John Hoffman was next examined on the same subject. He 
proved that he was appointed a Director in the Baltimore Branch 
in December, 1818: and that he soon after made enquiry at the 
Board about stock loans, and was told that it was executive busi- 
siness, and as such was transacted by the President and Cashier, 
without the intervention of the Directors. 

The next witness to this point was John M'Kim, Jr. who prov- 
ed that he was appointed a Director of the Baltimore Branch at its 
first organization, in 1816, and continued so till sometime in the 
spring of 1819: That after some time in August, 1817, no stock 
notes ever came before the board for discount or renewal, till the 
resolution of the Parent Board in January, 1819: That during this 
period he knew nothing of stock loans; the granting and manage- 
ment of which the President and Cashier claimed to themselves en- 
tirely as executive business : That he was a very constant and reg- 
ular attendant at the board, while he was a member, and never 
heard of its having given this power to the President and Cashier ; 
whom he always understood to claim and exercise it, under direct 
authority from the Parent Bank. That he never knew till the or- 
der for a reduction on stock discounts was received from the Pa- 
rent Board ; that they had discounted on stock at 125 per cent, or 
25 per cent above par ; and then he complained of it to the Pre- 
sident, Mr. Buchanan, and others : And that he knew nothing of 
their excessive loans to themselves and their associate George Wil- 
Hams, till after the 8th of March, 1819, when he was a member of 
the Parent Board. 

Joseph W. Patterson was then examined on the. same subject. 
He proved that he was a Director of the Baltimore Branch, from 
about the 1st of December, 1816, to about the 1st of December, 
1817:* That while a Director he learned that loans on stock were 
granted by the bank, which never came before the board — and upon 
hearing an enquiry made on the subject, by a Director at the board, 
the Cashier made answer that it was executive business, and that 



* The records of the Bank shew that it was from November 27, 1816, to 
November 27, 1817, inclusive. 

8 



00 

the board had nothing to do with it ; it having been given to the ex- 
cutive officers by the Mother Board : That this was the answer of 
the Cashier : That he knew of no such authority to discount on 
stock, being given to the executive officers, excepting from the as- 
sertion of the Cashier. 

The next witness on this subject was William Giimor. He 
proved that he was appointed a Director of the Branch in Balti- 
more, in the spring or summer of 1817, on the resignation of his 
brother Robert Giimor, who about that time went to Europe: And 
that he continued till sometime in the autumn of 1818, when he 
resigned : That during this period he observed that large loans were 
made by the President and Cashier on stock ; with which he al- 
ways understood the board had nothing to do: That he understood 
this expressly from the President and Cashier, or learned it by en- 
quiries at the board, when they were present : That no such loans, 
either by way of original discount or renewal, nor any loans on bills 
of exchange, came before the board while he was a member ; both 
being claimed by the President and Cashier as executive business: 
And that the existence of this state of things, which greatly cur- 
tailed the powers and diminished the usefulness of the Board of 
Directors, was one of his chief reasons for resigning bis seat.* 

Andrew B. Bankson, the discount clerk was again called and 
examined, as to the authority by which notes discounted, and their 
designation as notes on stock or personal security, are entered in 
the books of the bank. He proved that all such entries and de- 
signations are made by the particular orders of the Cashier, and 
under his superintendance. 

The Attorney General then produced proved and read in evi- 
dence several letters from the Traversers, Buchanan and M'Cul- 
loh respectively, in their official capacities, to the President and 
Cashier of the Parent Bank, bearing date on the 2Mb and 31st of 
May, the 4th, 1 1th, 12th and 21st of June and the 23d of July, 1817. 
He also produced and proved the original letter book of the Parent 
Bank, from which he read copies of two letters from Willm. Jones 
the President to the Traverser Buchanan, bearing date on the 27th 
of May and 13th of June, 1817 ; and two from Jonathan Smith, the 
Cashier to the Traverser M'Culloh, dated on the 24th of June and 

* The five last witnesses having- been absent when the others were called, 
were not examined immediately after them, but in a subsequent stage of the 
case. Their testimony on this point is reported here, for the purpose of gi v- 
ing a connected view of the whole. 



51 

£5th of July, in the same year. Notice had been given to the Tra- 
versers to produce the originals of these four letters, which it was 
proved were not found in the Branch Bank, when the present Cash- 
ier took possession of the office, on the removal of Jas. W. M'Cul- 
loh. 

The object of giving all these letters in evidence, as stated by 
the Attorney General, was to shew that the Traversers Buchanan 
and M'Culloh, at the time when they were discounting notes for 
themselves and their associate, to an immense amount, under pre- 
tence of a pledge of stock which did not exist, well understood the 
nature and extent of their duties, in relation to loans on stock, 
which had been fully explained to them not only by the resolutions 
of the Parent Board, but by the letters of its officers. 

The letters were as follows. 

« Office of Discount and Deposit, Baltimore 2Uh May 1817. 
« Sir, 

" Application is made to our board by Mr. George Williams, 
for a discount on 3,700 shares of stock in the bank of the United 
States ; and as express authority to grant discounts of this kind 
has not been given to us, I deem it proper to inquire, what are the 
views of the bank of the United States, and to ask instructions for 
our government. 

The principal effect in giving the above discount, would be to 
transfer a debt which the applicant owes at the Union Bank to this 
office. The former owes the latter, and we will, consequently, with 
equal security be drawing interest, which it is probable our banks 
will attempt to resist after the 1st July, although they certainly 
will not be in a situation to liquidate their balances, by the payment 

of them in specie. 

I have the honour to be, 

With great respect, sir, 

Your obedient servant, 

J. A. BUCHANAN, Pres 

WILLIAM JONES, Esquire." 

"Office of Discount and Deposit, Baltimore May3\, 1817. 
"Sir, 

Previously to the receipt of your letter dated the 27th inst. 
the application of Mr. Williams for a discount on stock had been 
acted upon by the board, and its amount applied to the credit of 
the Union Bank. In future, all applications of magnitude of this 



52 

(description, will be transmitted to the "Bank of the United States, 
and every facility will be afforded in forwarding such by the offi- 
cers of this institution. 

I have the honour to be, 

With the greatest respect, sir, 
Your obedient servant, 

J. A. BUCHANAN, President. 
WILLIAM JONES, Esq. 

President of the Bank of the United States." 

"Office of Discount and Deposit, Baltimore, 4>th June, 1817. 
"Sir, 

" Application is made to this Office by Samuel M'Culloh, for 
a discount of §36,050, being the par value of 570 shares stock in 
the Bank of the United States, which will be transferred as usual, 
and the proceeds of which discount to be remitted in a check on 
this office. I transmit the application to be submitted to your 
board, and have the honour to be, 

With great respect, sir, 

Your obedient servant, 

J. A. BUCHANAN, Pres't. 
WILLIAM JONES, Esq. 

President of the Bank of the United States." 

Office of Discount and Deposit, Baltimore, 11th June, 181 7. 
"WILLIAM JONES, Esq. 
Sir, 

"I am requested by Amos A. Williams, to make application 
to your board, in his behalf, for a discount of sixty -five thousand 
dollars on an hypothecation, in the prescribed form, of one thous- 
and shares United States Bank Stock. Be pleased to submit this 
proposition and to communicate the result. 
I have the honour to be, 

With great respect, sir, 

Your obedient servant, 
J. A. BUCHANAN, President." 

" Office of Discount and Deposit, Baltimore, June 12, 1817. 
"Sir, 

"On the 4th inst. I communicated the application of Samuel 
M'Culloh to your board through this institution, for a discount oC 



53 

§37,050, being the par value of five hundred and seventy shares 
United States Bank Stock, to be hypothecated .in the prescribed 
form. As I have not been favoured with your reply, I am appre- 
hensive that my letter miscarried, and therefore, at the request of 
the applicant, I take the liberty of renewing it. 

By yesterday's mail I transmitted the request of Amos A. Wil- 
liams, for a similar discount on one thousand shares. 
I have the honour to be, 
With great respect, sir, 
Your obedient servant, 

J. A. BUCHANAN, President. 
WILLIAM JONES, Esq. 

President of the Bank of the United States." 

"Office of Discount and Deposit, Baltimore, 21 st June, 1817. 
" Dear Sir, 

"Ralph Higinbothom, Esq. wishes a discount on 875 
shares of your stock, full paid; please ask it for him next Tuesday, 
and advise me the result. 

The delay attending your answer to Samuel M'Culloh's appli- 
cation for a discount on 570 shares, made other arrangements ne- 
cessary, and I am requested to say, that he does not wish it now. 
Truly yours, 

JAS. W. M'CULLOH, Cashier. 
JONA. SMITH, Esq. 

Cashier Bank of the United States, Philadelphia." 

" Office Discount and Deposit, Baltimore, 23rd July, 1817. 
" Dear Sir, 

" Mr. James White, of Abingdon, Virginia, proprietor 
of 1 ,000 shares of United States Bank Stock, wishes a discount of 
30,000 dollars towards paying his third instalment on said shares, 
and for that purpose to pledge 300 shares of his stock to the bank; 
please apply for it and inform me of the result. 
Truly yours, 

JAMES W. M'CULLOH, Cashier. 
JONATHAN SMITH, Esq. 

Cashier, Bank of the United States, Philadelphia. " 



54 

" Bank of the United States, May 27 th, IS IT. 

felR, 

Your letter of the 24th was this day submitted to the Board 
of Directors, and it was agreed to grant the discount at this Bank, 
for which Mr. Geo. Williams had applied at the office in which you 
preside, and upon the following conditions, to wit; upon 3,700 
shares of stock of the Bank of the United States, to be transmitted 
to the Cashier, together with a power of attorney duly executed 
agreeably to the form herewith enclosed, and Mr. Williams's note 
of hand for the par value of the amount paid on the said shares, 
payable to the Cashier of the Bank of the United States, or his or- 
der, without defalcation sixty days after date, at the Bank ot the 
United States. 

These terms being complied with, a check on your office will be 
transmitted to Mr. Williams for the amount of the proceeds of his 
note, which it is understood will be applied to the reduction of the 
balance due the Bank of the United States, by the Union Bank of 
your city, in the manner suggested in your letter of the 24th. 

Upon investigation it appeared to the board, that a general au- 
thority to all the offices, to grant those extensive discounts upon 
stock, would probably produce consequences not contemplated by 
the board, and that a partial authority might be considered invi- 
dious. 

It was therefore determined to confine all discounts upon stock 
of considerable magnitude, to the Board of the Parent Bank, to 
which application can be made with facility through the offices, in 
the nature of that which you have submitted. 
I have the honour, &c. 

(Signed) W. JONES, Prest, 
J AS. A. BUCHANAN, Esq. 

President Office Bank United States, Baltimore.' ' 

« Bank United States, July 25th, 1817. 
«Dear Sir, 

" Your letter of 23rd, containing an application on be- 
half of Mr. James White for a discount of §30,000 on a pledge of 
stock, is received and the discount granted by the Board of Direc- 
tors. 

Your favor of the 3rd, enclosing your note for §250,000 to re- 
new one of the same amount was received. Agreeably to your re- 
quest I return you your note due the 8th inst 



55 

You will oblige me by forwarding me the certificates, and au 
account of all the 6 per cent stock purchased by you at my request, 
as soon as you can. 

In a few days T will forward you a resolution of the Directors 
of this bank, authorizing the Offices to discount on pledges of stock 
with the form of a power to be used. 
1 am with much esteem, 

Your obedient servant, 

(Signed) JONA. SMITH, Cashier. 
J. W. M'CULLOH, Esq. 

Cashier, &c. &c. Baltimore." 

. " Bank of the United States, Jane \3th, 1817". 
"Sir, 

" The discount applied for by Mr. Samuel M'Culloh was grant- 
ed, and your letter passed to the Cashier, to give notice to your 
Cashier, was by accident overlooked, and has thus given you the 
unnecessa?w trouble of writing a second letter. The discount ap- 
plied for by Mr. Amos A. Williams was this day granted. 
I have the honor, &c. 

(Signed) W. JONES, Pres't, 

J. A. BUCHANAN, Esq. 

President of Bank United States, Baltimore." 

" Extract from Jona. Smith, Cashier, to J. W. M'Culloh, Cashier, 
Bank of the United States, June 2Uh, 1817. 
The application on behalf of Ralph Higinbotham Esq. for a dis- 
count on 875 shares complete at par, has this day been granted. — - 
The necessary papers you will please to direct him to forward to 
this Bank.*" 

The Attorney General then proceeded to offer evidence, of the 
means employed by the Traversers, Buchanan and M'Culloh, 
to conceal from the Parent Board the extent of the loans which 
they had thus made to themselves, on pretence of pledges of stock. 
He first called the attention of the court, to the resolution passed 
by the Parent Board, on the 20th of October 1818, and already gi- 



* These letters were given in evidence in a subsequent stage of the trial, 
for the purpose here stated. They are introduced in this place, on account 
of their connexion with this part of the subject. 



06 

ven in evidence ; which requires statements from all the Branches, 
" of the existing discounts upon notes, for the payment of which 
public or corporate stocks of any kind may have been pledged ; to- 
gether with a list of the said notes, the names of the drawers and 
endorsers, and the amount and description of the stock pledged, 
for the payment of the said notes respectively." — He also produc- 
ed and read, from the Letter Book of the Parent Bank, the copy of 
a letter of February 5th, 1818, from Jonathan Smith the Cashier, 
to James W. M'Culloh as Cashier of the Baltimore Branch, en- 
forcing the necessity of curtailments on discounts ; with the an- 
swer of James W. M'Culloh, dated on the 7th of the same month. 
These letters he said were relied on, to prove the concealment and 
deception practised on the Parent Board, in relation to the opera- 
tion in question. They are as follows s* 

"Bank United States, 5th February, 1818. 
Sir, 

The Directors of this Bank have looked at the present state 
of the specie concerns of the Country with great solicitude, and in 
consequence of the early and unprecedented demands for Spanish 
dollars for exportation, they directed the President to intimate to 
several of the offices the necessity of very considerable curtail- 
ment in their discounts; in compliance with the directions of the 
Board he has written to the offices east of this, and as far south as 
Richmond on the subject; the effects of the curtailments made in 
consequence thereof have had a beneficial effect in all the cases 
where the directions were attended to. Notwithstanding the wish 
of the Board expressed in a letter to your president, and the assur- 
ances given by the Directors of this Bank residing in Baltimore, 
that a reduction of the discounts at the office there would imme- 
diately take place, yet I find by the last statement they had actual 
Iy increased instead of having been diminished ; the circumstance 
has excited not only surprise but considerable uneasiness in the 
minds of the officers of the Bank. Although not particularly di- 
rected to make this communication, yet I feel it my duty to say 
that in my opinion the honor and safety of the Bank require that 
the discounts at Baltimore should without delay be greatly reduc- 
ed. I would also advise that where it can be possibly avoided no 



* These letters also were given in evidence in a subsequent stage of the 
trial ; and are introduced here for the same reasons as the former. 



5-7 

drafts east of this place should be given by you—We have been 
within a few days, under the necessity of forwarding another sup- 
ply of specie to Boston, and from present appearances we will have 
to send again in less than one week ; in that case we must again ap- 
ply to the south, for which I would advise you to prepare without 
delay. 

I have received your favor on the subject of the stock to be sent 
to Europe, in that business I am apprehensive some difficulties will 
arise — -on this subject the President however will write you. 
I am with much esteem, 
Dear sir, 

Your obedient servant, 

JONA. SMITH, Cashier. 
J AS. W. M'CULLOH, Esq. Cashier of the Office Baltimore." 

* Office of Discount and Deposit Baltimore, 7th Feb. 1818. 
" Dear Sir, 

" I have received your kind letter of the 5th, and in 
reply I beg leave to assure you, and through you, if necessary, the 
Directors of your Bank, that this Office will fully meet their wishes 
in diminution of its business and Stock Discounts, say one million 
on each line, if it is thought requisite to go so far. And that it is 
so considered by you, I shall assure them, until you wish a differ- 
ent course pursued. 

I apprehend that the whole curtailment may be accomplished 
within 60 days, and the largest part within 30. 
Truly yours, 

J. W. M'CULLOH. 
JONATHAN SMITH, Esq. 

Cashier, Bank of the United States, Philadelphia." 

He then produced proved and offered in evidence, four original 
letters from Jas. W. M'Culloh as Cashier of the Baltimore Branch, 
to Jonathan Smith as Cashier of the Parent Bank, which bore date 
on the 26th of October, and 9th and 14th of November, 1818; two 
of them being on the same day. 

Gen. Winder, of counsel with the Traversers, stated that he 
would not object to the reading of these letters in the first instance, 
but would reserve the right to object to their competency after - 
Avards, should it appear proper. With this reservation they were 
read, as follows : 

9 



£8 

" Office Discount and Deposit, Baltimore, 26th Oct 1818. 

<'Dear Sir, ' 

" I have directed the list of discounts granted here 
upon the pledge of stock and personal security, to be made up, and 
as soon as it can be conveniently furnished, it shall be forwarded to 
you. 

The information it requires to be given to the parties interested, 
shall also be communicated, and I natter myself, that they will 
eomply with the requisition without much inconvenience. 
With great respect, 

Yours truly, 

J. W. M'CULLQH, Cashier. 

JON A. SMITH, Esq. 

Cashier Bank United States, Philadelphia." 

« Office Discount and Deposit, Baltimore, 9th Nov. 1818. 

Dear Sir, 

" I am preparing a list of borrowers upon stock at this 
office, which you will receive next Tuesday ; the delay in furnish- 
ing this list correctly, arises from a necessity to examine these loans 
for some time back, as entries have sometimes been debited to 
loans on stock, which should have been to bills on personal securi- 
ty, and vice versa. I regret the delay, but shall hasten to lay the 
statement as soon as possible correctly before you* 
Truly yotfrs, 

J. W. M'CULLOH, Cashiers- 

JONA, SMITH* Esq. 

Cashier Bank of the United States, Philadelphia." 

" Office Discount and Deposit, Baltimore, Uth ./You. 1818* 

^Dear Sir, 

" I now enclose a statement of the existing loans, made 

at this office upon a pledge of stock with personal security. 

And to the parties intrusted I give notice, that a reduction of 
25 per cent will be required, every 60 days upon any excess had 
above the par value of their stock, unless they severally deposit an 
equal amount in funded debt, or stock of this bank at par. 

I have the satisfaction to believe, that whatever has been lent 
at this office, is perfectly well secured, and that the reduction in 
in the amount of its total loans recently required, will be accom- 
plished without any loss to the institution, and most probably with- 
\n 60 dayg. 



59 

Correcting the distribution of the loans, the amount lent upon 
pledged bank stock, &c. differs from the last weekly statements, 
being smaller ; which encreased the amount of bills discounted 
upon personal security, without varying the aggregate amount, as 
you will see by the next weekly statement ; excepting only what 
has been curtailed. 

This circumstance you can explain to the satisfaction of your 
Board of Directors. 

I have the honour to remain, 
Your obedient humble servant, 

J. W. M'CULLOH, Cashier." 

" Office Discount and Deposit, Baltimore, lUh Nov. 1818. 
"Dear Sir, 

" I send you herein a statement of the existing loans 
made at this office, upon pledged stock and personal security. 

As the amount differs from the last statement of this bank, it is 
proper for me to remark, that items had been posted under one ti- 
tle, that should have been to the other ; these variations adjusted, 
the next statement will accord; unless some small loan is taken up 
or paid off. 

Truly yours, 

J. W. M'CULLOH, Cashier. 
JONA. SMITH, Esq. 

Cashier Bank of the United States, Philadelphia." 

He then produced the letter book of the Baltimore Branch, for 
the period in question, and proved it by William L. Gill the cor- 
responding clerk. On inspection it was found to contain no copy, 
memorandum or trace of any letter whatever, between the 6th of 
August, 1818, and January 25th »819. 

Mr. Gill, in answer to a question relative to the nature of the 
letters of which it was usual to retain copies, stated that copies 
were never kept of such, as merely gave advice of the payment of 
drafts sent to the bank for collection, or enclosed drafts for collec- 
tion to other branches. A register of such drafts was kept in a se- 
parate book, and their payment, when made and reported, was not- 
ed in the margin. The Attorney General then produced and offered 
in evidence the following paper, purporting to be a list of "Loans 
upon Stock and personal security, made and existing at the Office 
of Discount and Deposit of the Bank of the United States at Balti- 
more; November — — , 1818.", 



60 

"Loans upon Stock and Personal Security, made and existing at the 

Office of Discount and Deposit of the Bank of the United 
States at Baltimore, November 1818. 

Beatty, James, 150 shares U. S. B. S. - - g 15,000 00 

Bradford & Cooch, 40 shares U. S. B. S. - 4,000 00 
Burt, Andrew, endorsed by Fridge & Morris, 80 

shares U. S. B. S. - - - - - 10,000 00 
Buchanan, Jas. C. endorsed by James Calhoun, S00 

shares U. S. B. S. 37,500 00 

Crawford, Wm, 15 shares U. S. B. S. - - - 1,500 00 
Chatard, J. 30 shares U. S. B. S. - - - 3,000 00 
Coates, J. 10 shares U. S. B. S. - - - - 450 00 
Calhoun, J. 200 shares U. S. B. S. - 20,000 00 
Candolle, A. 24 shares U. S. B. S. - - - 1,900 00 
Calhoun & Matthews, endorsed by S. Smith & Bucha- 
nan, 860 shares U. S. B. S. - - - 107,500 00 
Donnell, John, 600 shares U. S. B. S. - - - 42,500 00 
Deshon, C. endorsed by A. J. Schwartz, 600 shares 

U. S, B. S. 74,000 00 

Dunbar, G. T. endorsed by J. & J. Sullivan, 500 shares 

U. S. B. S. - - - - - - , 57,500 00 

Davidge, J. B. other stock at par value 5,000 State 

Bank, - - 5,000 00 

Dugan, C. 300 shares of U. S. B. S. - - - 30,000 00 
Falconar, A. H. endorsed by P. A. Young, 1 95 shares 

U. S. B. S. - - * - . - - - 24,375 00 

Finley, Thos. 150 shares U. S. B. S. - - 15,000 00 

Girard, Mad. 9 shares U. S. B. S. - - - 700 00 

Gray, James, 30 shares U. S. B. S. - - - 2,000 00 

Gardner, A. 14 shares U.S.B.S. - - - 1,400 00 
Gill, R. W. endorsed by Geo. Williams, 537 shares, 

tJ.--8._B. St 67,125 00 

Goodwin, Lyde, 30 shares U. S. B. S. - - 1,092 88 

Hall, Edw. 35 shares U. S. B. S. - - - 3,500 00 
Harrison, Hall, endorsed by Lloyd Buchanan, 190 

shares U. S. B. S. - - - - - 24,000 00 

Homans, Ben. 940 shares, State Bank, at par, - 940 00 

Hawkins, J. L. 350 shares U. S. B. SL - - 35,000 00 



g584,982 88 



61 

Amount broH forward, $584,982 88 
Hearsey, G. 20 shares U. S. B. S. - - - 2,000 00 

Hughlett, Win. 80 shares U. S. B. S. - - - 2,700 00 
Higinbothom, Ralph, endorsed by Thos. Higinbothom, 

1,100 shares U. S. B. S. . - - 137,500 00 

Johnson, R. M. endorsed by James Johnson, 402 shares 

U. S. B. S. - - - - - - 48,698 23 

Johnson, Win. Ward, James Johnson and Jno. T. 

Johnson, endorsed by S Smith & Buchanan and 

Geo. Williams, 4,000 shares as B. U. S. - 100,000 00 

Janvier, B. 20 shares U. S. B. S. - - - 2,000 00 

Keller & Forman, endorsed by Finley & Vanlear, 50 

shares U. S. B. S. - - - - - 6,000 00 

La Reintrie, J. L. endorsed by James C. Neilson, 260 

shares U. S. B. S. 32,500 00 

Long, R. endorsed by W. Gray, 4 shares U. S. B. S. 500 00 

Morton, Jno. A. Jr. endorsed by A. A. Williams, 631 

shares U. S. B. S. 78,875 00 

M'Henry, F. D. 10 shares U. S. B. S. - - - 1,000 00 

Muncks, A. endorsed by J. F. Bensamen, 40 shares, 

U. S. B. S. - 5,000 00 

Meridith, Jona. endorsed by D. A. Smith and a mort- 
gage on city property, 900 shares U. S. B. S. 
Morris, J. B. 1 50 shares U. S. B. S. 
M'Kim, Wm. D. 100 shares U. S. B. S. 
M'Coy, J. L. endorsed by ^J. F. Williams, 30 shares 

U. S.B.S. 
Ncnninger, J. & B. 30 shares U. S. B. S. - - 

Patterson, Wm. 600 shares U. S. B. S. 
Purviance, R. endorsed by R. Higinbothom, 300 shares 

U. S.B.S 

Polk, R. 80 shares U. S. B. S. 

Raphel, S. & A.& Co. 10,000 shares State Bank at 

par value, - 10,000 00 

S. Smith & Buchanan, endorsed by Geo. W r illiams, 

783 shares U. S. B. S. - - - - 97,875 00 

S. Smith & Buchanan, endorsed by Geo. Williams, 

5,500 at par B. U. S. .... 137,50000 

Sheppard, Thomas, endorsed by Lem. Taylor, 100 

shares U. S. B. S. - - - - - 12,500 00 



.12,500 


00 


15,000 00 


10,000 00 


3,750 


00 


3,000 


00 


45,000 


00 


40,000 


00 


1,979 


67 



81,490,860 78 



62 

Amount broH forward. Si ,490,860 78 
Sullivan, J. &. J. endorsed by G. T. Dunbar, 7,000 

shares U. S. B. S. 87,500 00 

Smith, Jona. 600 shares U. S. B. S. - - - 60,000 00 
Schwartze, A. J. endorsed by N. F. Williams, 325 

shares U. S. B. S. - - - - - 37,500 00 
Smith, D. A, 110 shares U. S. B. S. and 10,000 shares 

State Bank at par, - - 21,000 00 

Swan, John, 100 shares U. S. B. S. - - - 8,500 00 
Strieker, John, endorsed by R. Hyatt, 200 shares U. 

S. B. S. 25,000 00 

Williams, J. S. 62 shares U.S. B. S. - - 6,100 00 
Williams, N. F. endorsed by A. J. Schwartze, 325 

shares U. S. B. S, - - - - - 37,500 00 
Williams, Geo. endorsed by A. A. Williams, 1,775 

share, U. S. B. S, - ... . 221,875 00 
Williams Geo. endorsed by S* Smith & Buchanan, 

7,526 shares at par B. U. S. - - - 188,150 00 

Wirgman, C. & P. 29 shares U. S. B. S. - 2,900 00 

White, John, 100 shares do. - - 10,000 00 

Williams, S. 150 shares do. - - - 15,000 00 
Williams, A. A. endorsed by Geo. Williams, 103 

shares U. S. B. S. - * - - - - 12,500 00 

Williams, C. D. 29,800 shares U. S. 6 per cent. 29,800 00 
Williams, C. D. endorsed by A. A. Williams, 250 

shares U. S. B. S. - - - - - 31,250 00 

Winder W\ H. 10,000 shares State Bank at par, 10,000 00 

Stiles, Geo. Mayor, 89,000 shares City 6 per cent, 89,000 00 

Ellicott, Thomas, 14,000 shares State Md. - 14,000 00 

Smythe, J. 4,000 shares State Md 4,000 00 



82,402,435 78 



And to lay a foundation for the introduction of this paper, bj 
proving that it was a true copy of the list mentioned and referred 
to in the foregoing letters of October 26th and November 9th and 
14th 1818, and stated in one of those of the 14th to have been ac- 
tually sent ; and that the original was lost ; he first called Dennis 
A. Smith, who was examined. He proved that in 1818, he was a 
Director of the Parent Bank ; and was in Philadelphia during the 
Autumn of that year, about the time when lists of loans on stock, 



63 

commonly called "Stock Lists" were called for : That he think* 
Mr. Smith, the Cashier of the Parent Bank, advised that the stock 
list sent frtfm the Baltimore Branch should be changed, and part of 
the stock loans transferred to loans on personal security, or bills 
receiveable : That he believes that the stock list which he under- 
stood to have been sent from the Baltimore Branch, was not pre- 
sented in its original state to the Parent Board, but was corrected 
before it was handed in: That the correction advised by the Cash- 
ier of the Parent Bank, was to embrace loans for more than 25 per 
cent, or §125 per share : And that he received all his information 
on the subject from Jonathan Smith, the cashier of the Parent Bank, 
On his cross examination he stated, that James W. M'Culloh him- 
self brought to Philadelphia, as the witness understood at the time, 
the statement of which Jonathan Smith recommended the alteration. 
Andrew B. Bankson the Discount^! lerk was then called, who 
proved that all notes are entered in the books, under the direction 
of the Cashier; who points out such as are to be entered as stock 
notes, and such as are to be entered as notes on personal security; 
all of which are entered accordingly. 

Thomas B. Rutter, the Book Keeper of the Baltimore Branch 
for general accounts, and for preparing the statements, was then 
called and examined. He proved that twice a week, that is every 
Tuesday and Friday which were~ the discount days, statements 
were submitted to the Branch Board, containing an exposition of 
the actual situation of the branch on the preceeding day; its cash,, 
its deposits, and the notes discounted on stock on personal securi- 
ty and on bills of exchange : That all these statements were con- 
tained in a book called "the statement book," which was always 
laid before the board : That once a week (on every Tuesday) a 
statement was made out for the Parent Board, and delivered to the 
Cashier to be transmitted to Philadelphia : That this weekly state- 
ment for the Parent Board, was always, or was intended to be, an 
exact copy from the "statement book," of the Tuesday's statement 
there contained : That on the 16th of November, 1818, being Tues- 
day, the regular weekly statement for that day appeared to have 
been made out and transmitted : That in November, 1818, but he 
does not recollect on what day, he made out a statement of loans 
on stock in the Baltimore Branch, or a "stock list," and delivered 
it to the Cashier, James W. M'Culloh, for transmission to Phila- 
delphia: That this was the first stock list that had been made out 
for Philadelphia as far as he knew or believed : That he made it 



64 

out by order of the Cashier, who he thinks told him it was intended 
for the Parent Board : And that he understood it to have been pre- 
pared, in obedience to a particular order from that boaid. 

The paper mentioned above, and purporting to be a list or state- 
ment of "loans upon stock, &c." was then presented to the witness, 
and he was asked by the Attorney General whether it was a copy 
of the stock list, which he had so prepared and delivered to James 
"W. M'Culloh? He answered that he did not make it, and did not 
recollect ever having compared it with the original : That it was 
in the hand writing of J. L. La Reintrie, who was at that time a 
clerk in the Baltimore Branch, and now resided" in the Island of 
Cuba : That he however believed it to be a true copy ; not only 
because of its general resemblance and agreement, but because he 
had compared the amount of notes which it contained, $2,402,435 
78, with the balance which appeared in the ledger to the debit of 
stock loans, on the 14th of November, 1818, and found them to a- 
gree exactly ; that balance being $2,402,435 78. The ledger was 
then produced and referred to. It exhibited the balance to the de- 
bit of stock, as stated by the witness. 

Mr. Rutterthen proved, that on the 14th of November, 1818, 
James W. M'Culloh wrote and handed to him, an entry in relation 
to loans on stock, with directions to enter it in the day book of 
that day, which he accordingly did ; from whence it was posted in- 
to the ledger on the same day, and made part of the stock account 
of that day, tm which the above mentioned balance of §2,402,4 54 
78 arose. The day book was then produced and proved by Mr. Rut- 
ter, who turned to the entry in question, and read it to the court 
as follows — viz : 

Bills receiveable to Loans on Stock, Br, 

For this sum, being amount that had at various times been charged, 

as lent upon the hypothecation of stock at this office, but which 

should have been charged to bills receiveable, as ascertained by 

making up a list of the loans existing upon stock, hypothecated 

here and at the Bank of the United States . §852,683 64. 

The witness on being further examined stated, that he had made 

this entry merely from the paper handed to him by Mr. M'Culloh, 

which he had copied exactly into the day book. 

The statement book of the Branch Bank already in evidence 
was then referred to, by which it appeared that on the 7th of May, 
1818, the amount of loans on stock was - - - §3,301,38137 
That from this day till November 2d 1818, it 



65 

stood nearly at the same sum, never exceeding - 3,466,000 00 
Nor falling below - - -3,255,819 42 

which was its amount on that day. 
That on the 9th of November, 1 8 1 8, it was - - - 3,255,1 1 9 42 

On the 12th, - ----------- -3,255,11942 

And that on the 16th it fell to 2,408,r35 78 



Making a difference of --------- $846,383 64 

Which was transferred by the effect of the entry of 
Nov. 14th, 1818, to the account of loans on person- 
al security: That from the 16th of Nov. 1818, to 
the 4th of January 1819, the amount of loans on 
stock, as appearing on the statement book, stood 
nearly at the same, never rising above, - - - 2,422,485 78 
And so on till May 20th 1819, till which day the high- 
est sum was - 2,451,093 78 

The Attorney General then shewed from the statement book, 
that after this entry of Nov. »4th, 1818, there was a rise in the ap- 
parent amount of loans on personal security, corresponding with 
the fall in that of loans on stock ; which rise was also the effect 
of this entry. 
On the 9th of Nov. 1818, loans on personal security, 

or bills receivable, stood at - - - 83,665,703 96 
On the 12th of Nov. 1818, at - 3,655,352 80 

And on the 16th of that month, the first statement day 

after the entry, at - - 4,438,432 08 

At which it continued, with little variation, through the rest of the 
year. 

He then shewed that the reduction in the amount of stock loans 
on the books, was produced by the entry of November 14th 1818, 
in this manner. The amount of reduction was §846,383 64 

By recurrence to the Ledger it appeared, that be- 
tween the 12th and the 16th of November, in the 
statements of which days the reduction appeared, there 
were some new loans on stock, and some payments on 
old loans ; and that the excess of new loans over pay- 
ments, was ------------- 6,300 00 



which sum added to the reduction makes the exact 

amount of the entry, $852,683 64 

10 



66 

He then shewed that this entry, thus traced to one of the Tra- 
versers, and materially affecting a business in which they were mu- 
tually and jointly concerned, corresponded precisely with the 
paper, the competency of which he was endeavouring to establish ; 
because the amount of stock which it contains, 82,402,435 78, agrees 
precisely with the balance stated in the Ledger, on an account of 
which this entry, or rather the sum of £852,683 64 which it trans- 
fers, makes a part. 

Peter Benson, one of the Clerks of the Parent Bank, was then 
called to prove the loss of the statement, or " Stock List," which 
appears by the letter from James Wm, M'Culloh to Jonathan Smith, 
of November J 4th, 1818, to have been transmitted on that day to 
the Parent Board, and of which the paper in question was alleged 
tone a copy. This witness swore that by order of the President 
of the Parent Board, and with the assistance of the present Cash- 
ier, he had lately made very full and careful search, in the Bank 
of the United States, for the stock list transmitted from the Balti- 
more Branch, in November 1818, but could not find it; and that 
Jonathan Smith, who was Cashier of the Parent Bank at that peri- 
od, had resigned before this search was made, and is now r residing 
in Philadelphia. On this proof the Attorney General contended* 
that the paper in question was competent evidence in the case, and 
offered it as such. 

It was objected to by the Counsel for the Traversers, as not be- 
ing the best evidence of which the matter was susceptible : because 
admitting the existence and loss of the original to have been prov- 
ed, which might well be questioned, since Jonathan Smith to whom 
it was alleged to have been sent was alive, and had not been pro- 
duced, still there was no proof of this supposed copy. La Rein- 
trie, by whom this paper appeared in proof to have been written, 
was alive, and ought to have been produced. 

The court, after hearing the Counsel for the prosecution, una- 
nimously sustained the objection, and the paper was rejected.* 



* It is deemed proper to introduce here some remarks on this list, which 
although adjudged on legal grounds to be incompetent evidence, carries on 
its face most satisfactory proof of its authenticity. 

The first remark is, that it represents James W. M'Culloh, by whose di- 
rection it was framed, as owing nothing on Stock Loans ; although he then 
owed, as his share of the great stock operation, $571,864 89 on notes cal- 
led stock notes, which were dated but twelve days, and discounted but two, 
before this list was made : as fully appears by the testimony already stated, 



The Counsel for the Traversers then objected to the letters of 
October 26th and Nov. 9th and 14th, 181 8, from James W.JVl'Cul- 
loh to Jonathan Smith ; on the ground that as they related to a 
stock list which was not produced or proved, they could not be 
received in evidence, and thus be allowed indirectly to supply its 
place. 

To this it was answered on the part of the state, that these let- 
ters stated facts distinct from the stock list. They stated that mis* 
takes had been discovered in the books, which consisted in charg- 
ing various sums to the account of stock loans, which were really 
lent on personal security; and that the delay in furnishing tlie stock 
list, called for by the resolution of October 20th 1818, had been 
produced by the necessity of previously tracing and correcting 
the'se mistakes. This appeared' abundantly from the books them- 
selves, and from the testimony of the clerks, to be an absolute false- 
hood : And this attempt to impose on the Parent Bank, in relation 
to the very loans which form the subject of the indictment, was a ve- 
ry strong feature of the transaction, and tended to prove the frau- 
dulent intent, which constituted the chief ground of the charge. 

The court unanimously resolved, that these letters, so far as 
they stated facts distinct from the stock list, were competent evi- 
dence under this indictment. They therefore over ruled the ob- 
jection, and the letters were received. 

The Attorney General, to shew how the loans on stock really 
stood on the books of the Branch Bank, on the 13th of November 
1818, and that no such mistakes or corrections as were mentioned 
in the letters of October 26th and November 9th and 1 4th, did in 
in fact exist or were made, produced a list of stock loans as they 
really stood on that day, and proved it by the original books from 
which it was made, and the testimony of the clerk .who made it* 
He then read it in evidence as follows; 



It will be remarked in the second place, that S. Smith & Buchanan and 
George Williams are represented, aahaving each but two stock notes, amount- 
ing for the whole four to but §645,400 ; which was thus represented as the 
whole stock debt of tbe concern, instead of $1,542,136 12, its real amount 
at that time. Why this sum of g645,400 was fixed on, will appear in the- 
progress of the triaL The third remark is, that of the four notes thus re- 
ported as being due from these parties, one only, that of $97,875 is a real 
note. All the others were fictitious ; as fully appears by a comparison of 
this paper, with the preceding statements and evidence. 



68 

'List of Stock Notes as taken from the Books of the Office of Bank 
United States at Baltimore 13th Novemcer 1818. 

327 J. C. Buchanan, J. A. Buchanan, 

due 25th Dec. 1817, g 17,000 
333 ditto J. A. Buchanan, 

due 28th Dec. 1817, 11,500 
323 ditto J. A. Buchanan, 

due 24th Dec. 1817, 14,000 



300 shares. 



4 1 4 James Bea% 1 7th Nov. 1817 7,500 

631 ditto 12th Jan. 1818 7,500 

150 shares U. S. Bank stock — « —15,000 

448 A. Burt 80 ditto 25 Nov. 1817 10,000* 

529 Bradford & Cooch 18th Dec " 2,000 

591 ditto lsf Jan. 1818 2,000 

40 shares U. S. B. S. -4,000 

695 Win. Crawford, 15 do 14th Nov. 1817 1,500 

417 John Coats 10 do 14th Nov. 450 
419 Calhoun & Matthews, S. Smith & B. 

17th Nov. 25,000 

423 Ditto 18th " 10,000 
473 Ditto 4th Dec. 12,Q0O 
478 Ditto 5th " 20,000 

506 Ditto 15th" 5,000 

554 Ditto 23rd » 7,500 

555 Ditto S. Smith & B. 

24th Dec. 5,000 

576 Ditto do. 28th " 10,000 

577 Ditto do. 28th " 4,400 
585 Dtto 30th » 17,500 
457 & 8 Ditto 30th » 10,000 

-860 shares —126,400 

424 P. Chatard, 30 shares 19th Nov. 1817 3,000 
428 A. Candolle, 24 do 21st Dec. 1,200 

507 James Calhoun, 15th " 8,000 
560 Ditto 25th " 2,000 
581 Ditto 29th " 9,000 

■ 200 shares 19,000 



69 

412 Geo. T. Dunbar, 17th Nov. 20,00d 
795 Ditto J. & J. Sullivan 

15th Nov. 1817 37,500 

797 Ditto R. Higinbothom, 

15th Nov. 30,000 

798 Ditto do. 15th " 7,500 

500 shares 57,500 

413 C. Dugan, 17th " 16,000 
605 Ditto 5th Jan. 1818 14,000 

300 shares 30,000 

415 John Donnell, 17th Jan. 1818 6,000 

437 Ditto 22nd " 3,000 

453 Ditto 29th " 3,500 

481 Ditto 27th Nov. 1817 30,000 

600 shares, —42,500 

467 C. Deshon, 30th Nov. 1817 15,000 

505 Ditto 15th Dec. 6,000 

544 Ditto 22nd " 18,000 

557 Ditto £5th " 30,000 

600 shares 69,000 

9 Jno. B. Davidge, §5,000 S. B. stock, 

24th Nov. 1817 5,000 
477 A. H. Falconar 6th April 1819 3,125 
659 Ditto 15th Jan. 15,000 
44 Ditto 25th Dec. 6,250 
195 shares — 24,375 

542 Tho. Finley, 21st Dec. 1817, glO,000 

Dec. 29th 85,000, 150 shares 15,000 

430 James Gray, 30 shares 20th Nov. 1817 2,000 

451 R. W. Gill, 28th Jan. 1818 14,500 

489 Ditto 9th Dec. 1817 i 3,000 

490 Ditto Ditto 4,550 
526 Ditto 17th Ditto 2,800 
540 Ditto 19th Ditto 15,500 8$ 

543 Ditto 22nd Ditto 7,750 

586 Ditto 30th Ditto 5,000 

587 Ditto 31st Ditto 1,875 

588 Ditto Geo. Williams, 

31st Dec. 1818 7,115 53 

633 Ditto 12th Jan. 181 £ 5,200 

--—537 shares ._..■ ■_!_..*'-■ 77,291 41 



70 



471 
472 
590 
598 
893 

894 
325 

627 
628 



990 

240 

425 

427 
450 
492 
524 
482 
826 
635 

479 

480 

592 
615 



Madame Girard, 9 shares 3rd Dec, 1818 
Fred. C. Graf, 4th " 

Madame Girard 9 shares 30th Nov. 
Lyde Goodwin, SO do. 3rd March 1818 
Ralph Higinbothom 1 , 1 00 shares 
29th Nov. 1817 

ditto 
H. Payson, 
26th Dec. 
10th March 1818 
Thos. Higinbothom, 
9th Jan. 1818 



Ditto 
Ditto 

Ditto 
Ditto 



30,000 
7,500 

25,000 
50,000 



12,500 



Wm. Hughlett, 80 shares, 8th 
Dec. 1817 
Ditto 14th Nov. 



2,000 
700 



Hall Harrison, L.Buchanan, 190 shares 
19th Nov. 1817 

Edward Hall, 35 shares 20th Nov. 1817 

James L Hawkins, 350 do. 29th Jan. 1818 

Ben. Homans 8940 State B. S. 11th Feb. 1818 

Richard Hyatt, 16th Dec. 1817 

P. Janvier, 20 shares, 8th Dec. 

R. M. Johnson, 402 shares, 17th Nov. 1817 
Ditto S. Smith & B. Geo. Wil- 
liams, 5th March 1818 



Keller & Forman 
Ditto 
-50 shares 
J. L. La Reintrie, 
Ditto 
•260 shares 



7th Dec. 1818 
ditto 

1st Jan. 1818 
7th do. 



5,000 
1,000 



7,500 
25,000 



606 & 607 Reuben Long:, 4 shares 5th Jan. 1818 



674 
42 
43 

597 
642 

643 



J. W. M'Culioh, 
Ditto 
Ditto 
Ditto 
Ditto 

Ditto 



15th April 1818 3,800 
22nd Dec. 1817 2,000 
ditto 1,400 

3rd March 1818 25,000 
Geo. Williams, 
5th March 1818 155,600 
Geo. Williams, 
5th March 1818 



200 ' 
12,000 
500 
1,092 88 



162,500 



2,700 



24,000 

3,500 

35,000 

940 

31,250 

2,000 
41,500 

107,198 23 



■6,000 



-32,500 
600 



156,723 23 



71 



644 


Ditto 


S. Smith & B. 
5th March 1818 


15,000 




645 


Ditto 


Geo. Williams 
5th March 1818 


52,041 66 




646 


Ditto 


Geo. Williams, 
5th March 1818 


7,136 12 




647 


Ditto 


S. Smith & B. 
5th March 1818 


112,500 




248 


Ditto 


S. Smith & B. 
16th Dec. 1817 


15,000 




249 


Ditto 


S. Smith & B. 
17th Dec. 1817 


15,000 


561 201 01 


368 


John A. Morton, Jr. A. A. Willi- 


■■*/ v I j & V JL V/ JL 






ams, 6th Dec. 1817 37,275 




426 


Ditto 


19th Nov. 1818 


10,000 




473 


Ditto 


Geo. Williams 4th Dec. 2,600 




530 


Ditto 


18th Dec. 


10,000 




556 


Ditto 


23rd Dec. 1817 


4,400 




561 


Ditto 


25th Dec. 


8,800 




620 


Ditto 


8th Jan. 1818 


2,500 




629 


Ditto 


11th do. 


3,300 






631 shares 






-78,875 


420 


Jona. Meredith, D. A. Smiths- 










17th Nov. 1817 


77,065 38 




454 


Ditto 


30th Nov. 1817 


54,000 






900 shares 






1 <*1 (\a,K «xe 






m XOl )\J\JO oo 


455 


Jno. B. Morris, 150 shares 30th Nov. 1817 


15,000 


541 


Wm. D. M'Kim 100 do. 19th Dec. " 


10,000 


575 


And. Muncks. 28th ' 


' 1,000 




618 


Ditto 


8th Jan. 


4,000 






40 shares 






— 5,000 


617 


F. D. M'Henry, 10 shares, 7th " 




1,000 


365 


Nenningers, 


6th Dec. 1818 


500 




366 


Ditto 


7th " 


500 




621 


Ditto 


8th Jan. 1819 


500 




438 


Ditto 


20th Nov. 181 S 


1,500 


—3,000 


466 


*Ov ollCtl C3j 

W. Patterson & Son 1st Dec. 


11,000 


558 


Ditto 


25th " 


10,000 





78 

619 W. Pater-son & Son, 8th Jan. 1819 9,000 

658 Ditto 15th " 18,000 

600 shares 48,000 

418 R. Purviance, R. Higinbothom, 

17th Nov. 1818 6,500 

468 Ditto 1st Dec. do 30,000 

469 Ditto R. Higinbothom 

ditto 10,000 

300 shares —46,500 

630 Rebecca Polk, 80 shares, 12th Jan. 1819 1,979 67 

447 Raphels, 24th Nov. 1818 2,000 

483 Do. 8th Dec. 2,500 

559 Do. 25th " 3,000 

632 Do. 1 2th Jan. 1819 2,500 

SI 0,000 State Bank Stock 10,000 

918 fe. Smith & Buchanan, Hollins & M'Blair 

29th Nov. 1818 17,500 
205 Ditto Geo. Williams 

3 Dec. 181^8 35,000 

636 Ditto Ditto 5th March 1819 11,496 77 

637 Ditto Ditto J. W. M'C. 

5th-M arch 1819 525,000 

638 Ditto Ditto ditto ditto 314,000 

639 Ditto 5th March 1819 25,000 

640 Ditto ditto 97,875 

641 Ditto ditto 25,000 

6,283 shares ——850,801 77 

921 D. A. Smith, 110 shares 1st Dec. 1818 40,000 

922 Ditto gl 0,000 State B. S. 

28th Nov. 1818 14,865 34 



■54,865 34 



411 J. & J.. Sullivan, C. D. Williams 

17th Nov. 1818 31,250 

456 Ditto 50th " 6,250 . 

574 Ditto 26th Dec. 12,500 

796 Ditto Geo. T. Dunbar 15th Nov. 37,500 

700 shares, 87,500 

421 A. J. Schwartze, N. F. Williams, 

17th Nov. 37,500 
459 Ditto " 30th Nov. 13,000 
580 Ditto » 29th Dec. 7,500 
325 shares ■ 58,000 



73 

452 Jno. Strieker 200 shares, 28th Jan. 1819 25,000 

491 Thos. Sheppard, 100 shares, 9th Dec. 1818 12,500 

527 Jona. Smith, 600 do. 16th Jan. 1819 60,000 
614 Jno. Swan, 100 do. 7th Jan. 8,500 
824 N.F.Williams, 17th Nov. 1818 3,750 

422 Ditto A. J. Sch war tze, 

17th Nov. 1818 37,500 

325 shares 41,250 

416 Wm. H. Winder 810,000 State bank stock, 

17th Nov, 1818 4,500 

429 C. & P. Wirgman, 29 shares, 20th Nov. 1818 2,900 

470 Jno . White, 1 00 shares, 2nd Dec. 1818 1 0,000 

528 Amos A. Williams, 103 shares, Geo. Wil- 

liams, 17th Dec. 1818 12,500 
596 Cum'd D, Williams, 829,800 state bank stock, 

26th Nov. 29,800 
616 Jno. S. Williams, 7th Jan. 1819 2,500 
657 Ditto 15th Dec. 1818 3,600 

62 shares — 6,100 

232 Sarah Williams, 150 shares 10th Dec. 1818 15,000 
634 George Williams, 9,301 shares, at B. U. S, 

A. A. Williams, 5th March 1819 169,833 34 



83,369,869 03 

He then recalled to the recollection of the court, the resolution 
of the Parent Board of February 19th 1819, peremptorily calling 
Upon the Baltimore Branch, for a list or statement of Loans on 
Stock, as then existing there, and for a similar list of loans on per- 
sonal security ; and then produced proved and gave in evidence 
an original stock list, under the signature of the Traverser 
M'Culloh, and bearing date on the 8th of March, 1819; which had 
been transmitted by him to the Parent Board. This paper was 
then read as follows : 
Loans upon Stock and Personal Security, made and existing at 

the Office of Discount and Deposit of the Bank of the United 

States at Baltimore, March 8th, 1819. 
Beatty James, 150 shares U. S. B. S. par, - - 815,000 00 
Buchanan, J. C. 300 shares U. S. B. S. 11900 shares 

city sixes, - - - .- . - - 40,000 00 



855,000 00 
11 



Amount broH forward $55,000 00 
Bradford & Cooch, 40 shares U. S. B. S. under par, 5,800 00 
Burt, Andrew, endorsed by Fridge & Morris, 80 shares 

U. S. B. S. at the rate of 125 per share, - - 10,000 00 

Calhoun, James 200 shares U. S. B. S. under par, - 16,625 00 
Coats, John 10 shares U. S. B. & under par, - - 450 00 
Crawford, William 15 shares U. S. B. S.par, - 1,500 00 

Candolle, And. 24 shares U. S. B. S. under par, - - 1,200 00 
Chatard, Peter 30 shares U. S. B. S. par, - - 3,000 00 

Calhoun & Mathews, endorsed by S. Smith & Buch- 
anan, 860 shares U. S. B. S. at the rate of 123 per 

share, - 106,430 00 

Deshon, Christopher endorsed by A. J. Schwartze, 

600 shares U. S B. S. at the rate of 109 pr share, - 65,300 00 
Dugan, Cumberland 30O shares U. 8. B. S. par, - 30,000 00 
Dunbar, G. T. endorsed by J. & J. Sullivan, 500 sh's. 

U. S. B. S. at the rate of 1 1 5 per share, - - 57,500 00 
Donnell, John 600 shares U. S. B. S. under par, - - 35,000 00 
Ellicott, Thomas 1 1 3 shares U. S. B. S. par, - - 11 ,300 00 
Etting, Solomon 225 shares U. S. B. S. par, - - 22,500 00 
Exchange, Company, Bait. $20,000 U. S. 6 per cent 

stock, -------- 15,00000 

Finley, Thomas endorsed by George Williams, N. F. 
Williams 471 shares U. S. B. S. at the rate of 108 
per share, - - - - - - - 50,015 00 

Falconar, A. H. endorsed by S. G. Griffith, 120 sha's. 

U. S. B. S. at the rate of 125 per share, 
Gerard, Madame 9 shares U. S. B. S. under par, 
Gray, James 30 shares U. S. B. S. under par, 
Goodwin, Lyde 30 shares U, S. B. S. under par, 
Gill, R. W. endorsed by John Gill, George Williams, 

537 shares IT. S. B. S. at the rate of 125 pr share, 
Graf, F. C. $12,000 U. S. 6 per cent stock, 
Higinbothom, Ralph endorsed by Thos Higmbothorh, 
J, Gooding, 1,100 shares U. S. B. S. at the rate of 
125 per share, ------ 

Homans, Benj. $940 Franklin Bank stock 
Hughlett, William 80 shares U. S. B. S. under par, 
Hall, Edward 35 shares U. S. B. S. par, - 



- 15,000 00 


700 00 


- 2,000 00 


1,000 00 


67,125 00 


- 12,000 00 


137,500 00 


940 00 


- 4,700 00 


3,500 00 


38731,085 00 



7S 

Amount broH forward, $§731,085 00 
'Hawkins, J. L. 350 shares U. S. B. S. par, - - 35,000 00 

Hyatt, Richard endorsed by A. A. Williams, 250 sh's 

U. S. B. 8. at the rate of 125 per share, - - 31,250 00 
Janvier, P. 20 shares U. S. B. S par, - - - 2,000 00 

Johnson, R, M. endorsed by James Johnson, 402 sh's 

U. 6. B. S. at the rate of 120 per share, - - 48,698 23 
Johnson, R. M. William Ward, James Johnson John 
T. Johnson, endorsed by S. Smith and Buchanan, 
and George Williams, 4,000 shares atB. U. S. at 

par 25 adv. at office, 100,000 00 

Keller & Foreman, endorsed by Finley & Van Lear, 

50 shares U. S. B. S. at the rate of 120 per share - 6,000 00 
Long, Reuben 4 shares U. S. B. 8. par, - 400 00 

La Reintrie, J. L. endorsed by J. C. & R. Neilson, 

127 shares U. 8. B. 8. at the rate of 125 pr. sh'r. 15,875 00 
Murray, W. H. endorsed by George Williams, 104 

shares IT. S. B. 8. at the rate of 125 per share, - 13,000 00 
M'Culloh, James W. 34 shares U, S. B. S. par, - 3,400 00 

M'Coy, J. L. endorsed by N. F. Williams, 30 shares 

U. 8 B. 8. at the rate of 125 per share, - - 3,750 00 

Morris, J. B. 150 shares U. S. B. S. par, - - 15,000 00 

Meredith, Jonathan endorsed by D. A. Smith, mort- 
gage on city property 1,048 shares U.S. B. S. at 
the rate of 125 per share, - - - -131,000 00 

M'Kim, W. D. 100 shares U. S. B. S. under par - 9,500 00 

Muncks, Andw. endorsed by J.F. Bensaman, 40 sh's. 

U. S. B. S. at the rate of 12^per share, - - 4,950 00 
M'Henry, F. D. 10 shares U. S. B. S. par, - - - 1,000 00 
Morton, John A. jr. endorsed by A . A. Williams 500 

shares U. S. B. S. at the rate of 1 22 per share, - 60,795 00 
Nenninger, J. & B. 30 shares U. S. B. S. under par, - 2,500 00 
Patterson & Sons Wm. 600 shares U. S. B. S. under 

par, ------- - 47,500 00 

Polk, Rebecca 80 shares U. S. B. S. under par, - - 1,979 67 
Purviance, Robert endorsed by R. Higinbotham, 300 

shares U. S. B. S. at the rate of 125 per share, - 37,500 00 
Raphael, & Co. S and A. 10,000 Union Bank stock, - 9,850 00 
Ricaud, Rebecca 72 shares U, S. B. S. under par - 2,500 00 



$1,314,532 90 



76 

Amount broH forward $1,314,532 90 
Sheppard, Thomas 100 shares U. S. B. S. under par, - 10,000 00 
Schwartze, A. J. endorsed by N. F Williams, 325 

shares U. S. B. B. at the rate of 120 per share, - 37,500 00 
Sullivan, J. and J. endorsed by G. T. Dunbar, Cal- 
houn and Mathers, 700 shares U. S. B. S, at the 
rate of 125 per share, - - - - - 86,875 00 

Swan, John 100 shares U. S. B. S. under par, - 8,500 00 

S. Smith and Buchanan endorsed by Geo. Williams 

783 shares U. S. B, S. at the rate of 125 per shV. - 97,875 00 
S. Smith and Buchanan endorsed by Geo. Williams, 

5,500 par at B. U. S. stock 25 adv. at office, - 137,500 00 
Stiles, George, Mayor, 89,000, 6 per cent Baltimore 

City stock, „ - - 89,000 00 

Strieker, John endorsed by George Williams 200 sh's 

U. S. B. S. at the rate of 1 25 per share, - - 25,000 00 
Smith, D. A. 110 shares U. S. B. S. $10,000 Havre 

de Grace Bank stock, - - - - - 21,000 00 

Taylor Lemuel 150 shares U- S. B. S. par, - - 15,000 00 
Tyson, Isaac 112 shares IT. S. B. S. par - - - 11,200 00 
Williams, N- F. endorsed by A. J. Schwartze, 325 

shares U. S. B. S. at the rate of 1 20 per share, - 37,500 00 
Williams, John S. 62 shares U. S. B. S. under par, - 5,920 00 
Williams, Sarah 150 shares TJ. S. B. S. par, - - 15,000 00 
Williams A- A. endorsed by George Williams, 103 

shares U. S. B. S. at the rate of 120 per share, - 1 1,875 00 
Williams, C* D. 400 shares U. S. B S. par, - - 40,000 00 
Wirgman, C and P. 29 shares U*SB- S. par, - - 2,900 00 
White, John 100 shares U. S. B. S- par, - - 10,000 00 

Williams, George endorsed by A. A. Williams 1,775 

shares U. S. B. S. at the rate of 125 per share, - 221,875 00 
Williams, George endorsed by S. Smith and Buchan- 
an 7,526 shares par at B. U- S. 25 adv. at office, - 188,150 00 
Young, P. A. endorsed by Hu. Young, 104 shares U. 

S. B- S. at the rate of 125 per share, " - - - 13,000 00 



$2,400,202 90 

JAMES W. M'CULLGH, Cash. 

He then remarked to the court, and requested them to bear 
in mind, that in this list thus made out and returned under a spe- 
cial and positive order of the Parent Board, James W r . M'Culloh 



77 

appeared as a borrower on stock ,to the amount of only $3400 on 
his own note without an endorser, secured by a pledge of 34 shares 

of stock. His name did not further appear upon the list, either as 
a borrower a drawer or an endorser. S. Smith and Buchanan ap- 
peared as borrowers on two notes drawn by themselves and en- 
dorsed oy George Williams, to the amount of §235,375 ; one of 
which notes amounting to $ 137,500 was stated to be secured at the 
rate of 25 per. cent, advance on 5,500 shares of stock pledged at 
the Parent Bank at par, and the other, for §97,875 Was made to ap- 
pear as resting on a pledge of 783 shares in the Branch Bank, at 
125 per. cent: and George Williams was represented as a borrower, 
to the amount of $41 0,025, on two notes drawn by himself; one of 
which for §221,875 was represented to be endorsed by Amos A. 
Williams, and secured by a pledge of 1775 shares of stock in the 
Branch Bank at 125 per. cent; and the other of §188,150, to be 
endorsed by S. Smith & Buchanan, and secured by an advance 
of 25 per. cent above par on 7526 shares, pledged at par in the Pa- 
rent Bank. These Loans to S. Smith & Buchanan and George 
Williams, on these four notes, amounted to §645,400 ; which was 
thus represented as the whole amount of loans obtained as stock 
loans, by these parties ; for the small loan to M'Culloh of §3,400, 
on 34 shares at par, appeared to be his seperate concern. Thus 
it stood on the stock list transmitted to Philadelphia, on the 8th 
March, 1819, in answer to the pressing and peremptory call of the 
Parent Board. To shew how it stood in fact, he produced a list 
of stock loans, of the same date, made out from the Books of the 
Baltimore Branch ; and having proved it by the clerk who made it 
out, and by the books themselves which were referred to — he read 
it in evidence as follows : 

Ji List of Loans upon Stock which appears by the Books to have 
existed at the Office of the Bank of the United States at Balti- 
more on the 8th March 1819. 

37 James Beatty, 7,500 due 16th March 1819 

74 ditto 7,500 23rd do 

150 shares 15,00© 

114 Bradford & Cooch, 29th March 1819 2,000 
201 ditto 4th May 1,900 
167 ditto 23rd April 1,900 
40 shares — 5,800 

116 And. Burt, 31st March S,000 

1 1 7 ditto Fridge & Morris do. 2,000 

——80 shares -~ 10,000 



ys 



in 



J. C. Buchanan, 300 11,900 City 



bank s 


rtock 30th April, 




40,000 


84 P.Chatard, 30 25th March 




3,000 


664 Wm. Crawford, 15 


17th May 




1,500 


792 A. Candolle, 24 


24th March 




1,200 


€0 Jno. Coats 


20th do. 




450 


©5 Calhoun & Matthews 


23d March 


20,000 




66 ditto Smith &B. do 


5000 




83 ditto 


24th do 


10,000 




128 ditto 


5th April 


7,000 




129 ditto Smith & B* do 


3,0u0 




139 ditto ditto 


9th do 


12,000 




141 ditto 


do 


20,000 




158 ditto Smith & B. 20th do 


4,700 




173 ditto 


27th do 


7,125 




174 ditto ditto 


do 


4,750 




182 ditto 


30th do 


4,180 




183 ditto 


do 


9,500 




196 ditto 


4th May 


16,625 




860 shares 




— 


123,930 


159 James Calhoun, 


20th April 


7,600 




178 ditto 


30th do 


1,900 




1 99 ditto 


4th May 


7,125 




* ■■■ 200 shares 

665 Geo. T. Dunbaiv 






16,625 


17th March 


30,000 


666 ditto 


do. 


7,500 




71 ditto 


23rd do 


20,000 




.» 500 shares 

726 J. B. Davidge 






57,500 
5,000 


26th May 




730 John Donnell 


30th March 


30,000 




89 ditto 


26th do 


3,000 




119 ditto 


2nd April 


2,000 




■ 600 shares 




' ■ ■ 


35,000 


15 Cumberland Dugan, 


9th March 


14,000 




61 ditto 


23rd do 


16,000 




—300 shares 
132 Chris. Deshon 






30,000 


5th April 


15,000 


160 ditto 


20th do 


5,000 




171 ditto 


27th do 


10,000 




172 ditto A. J. Schwartze, do 


5,300 




185 ditto 


30th do 


30,000 




«— i -600 shar^ 






65,300 



79 

16 Thos. Ellicott, 113 29th March 45,000 

40 Exchange Company, 820,000 of 6 per 

cents, 17th March 10,000 
122 ditto 3rd April 5,000 



15,000 

44 A. H. Falconar, 120 lQth March 15,00© 
13 Finley & Van Lear, Geo. Willi- 
ams, 4th April, 15,065 

80 Thos. Finley 25th March 19,000 

165 ditto 23rd April 10,000 

8 1 ditto R. Hyatt, N. F. Williams, 

25th March 950 

198 ditto 4th May 5,000 

471 shares 50,015 

38 R.W.Gill, 16th March 5,200 

152 ditto 13th April 13,000 

153 ditto Jno.Gill do 4,550 
163 ditto 20th do 2,800 

166 ditto 23rd do 15,500 
170 ditto 27th do 7,750 

194 ditto Geo. Williams 4th May 8,975 

195 ditto do. 5,000 
215 ditto 3rd April 4,350 

537 shares - 67,125 

91 James Gray 30 26th March 1819 2,000 
140 F. C. Graff 812,000 6 pr cts. 

9th April 12,000 

144 Madame Gerard 9th April 200 

202 ditto do 500 

—9 shares . 70t 

209 Lyde Goodwin, 30 6th July 1.00© 
667 Ralph Higinbothom, 17th March 30,000 

735 ditto 1st April 30,000 
34 ditto Thos. Higinbothom, 

12th March 12,500 
58 ditto do. 20th do 7,500 
126 ditto Jno. Gooding 4th April 7,500 
180 ditto Lem. Taylor, 30th do 6,250 
627 ditto 9th March 50,000 
1,100 shares , , , ., 143,750 



80 



760 


Wm. Hughlett 1 Hh June 


2,000 




790 


ditto 24th do 


2,000 




59 


ditto 20th March 


700 






Qf\ cYtn-r>na 


_~ 


4,700 




ovy siiai Co 


92 


Edward Hall, 35 26th do 




3,500 


120 


J. L. Hawkins 350 1 st June 




35,000 


156 


Ben. Homans, Jr. g940 Franklin B. 13th Ap. 


940 


162 


Rd. Hyatt, 250 A. A. Williams, 20th do 


31,250 


635 


Rd. M. Johnson, 402, 5th March 107,198 23 




689 


ditto 4,000, B. U, S. 20th do. 


40,200 




690 


ditto do 


1,300 










148,698 23 






154 


P.Janvier 20 13th April 




2,000 


142 


Keller & Forman Finley & 








Vanlear, 9th April 


1,000 




143 


ditto 


5,000 




*. 


— 50 shares 


■? ' ■ ? ' ■ . 


6,000 


18 


Reuben Long 9th March 


200 




19 


ditto do 


400 






A BliarAB 




600 


186 


'x SIIU.1CO 

J. L. La Reintrie 4th July 


6,700 


187 


ditto ditto 


1,675 




211 


ditto J. C. Neilson, 7th May 


7,500 






127 shares 


--* 


15,875 


642 J. W. M'Culloh Geo. Williams 








5th March 


155,600 




643 


ditto do 


156,723 23 




644 


ditto S. S.&B. 


15,000 




645 


ditto Geo. W. 


52,041 66 




646 


ditto do 


7,136 12 




647 


ditto S. S. & B. 


112,500 




729 


ditto do 15th March 


3,800 




782 


ditto do 19th April 


15,000 




783 


ditto do 20th do 


15,000 




795 


ditto 25th June 


1,400 




796 


ditto do 
34 shares 


2,000 




203 


ditto N. F. Williams 4th May 


25,000 




42 


ditto S. S.&B. 29th March 


20,000 




43 


ditto do 31st do 


11 s 000 










592,201 01 



81 



26 J. A. Morton, Jr. 12th March 2,500 




35 ditto 15th " 3,300 




87 ditto 25th " 10,000 




145 ditto 9th April 2,600 




168 ditto 2Srd 10,000 




175 ditto Geo. Williams 27th 4,180 




184 ditto 30th 8,360 




212 ditto A. A. Williams 7th May 19,855 






60,795 
3,750 


688 J. L. M'Coy, 30 shares, 20th May, 


22 F. D. M'Henry, 10 shares, 1 1th May, 


1,000 


27 A. Muncks, 12th 4,000 




£00 ditto 4th 950 






4,950 


67 Jonathan Meredith, D. A, Smith, 


23rd March, 12,500 




68 ditto do 14,565 38 




69 ditto 50,000 




133 ditto D. A. S. 5th April 10,000 




134 ditto do 4,000 




135 ditto 40,000 




1,048 shares and mortgage on property — 


151,065 SS 


127 J. B. Morris, 150 shares, 5th April 


15,000 


190 W.H.Murray 4th July 10,400 




191 ditto Geo. Williams, do 2,600 






13,000 


23 Nenningers, 10th May 500 


24 ditto 11th " 500 




90 ditto 26th March 1,500 






2,500 
9,500 


169 Wm. D. M'Kim, 100 shares 23rd April 


25 W. Patterson & Sons, 12th March 1819 9,000 




132 ditto 6th April 11,000 




45 ditto 19th 18,000 




179 ditto 30th 9,500 






47,500 
1,979 67 


36 Rebecca Polk, 80 16th March 



72 R. Purviance, R. Higinbothom, 23d Ma. 6,500 

127 ditto do. 6th April 10,000 

128 ditto » 30,000 

^ 300 shares. ** .. 46,50G 

12 



637 


ditto 


638 


ditto 


639 


ditto 


640 


ditto 


641 


ditto 


125 


ditto 



8£ 

39 Raphels 16th March 2,500 

115 ditto 30th do. 2,000 

155 ditto 13th April 2,500 

176 ditto 30th 2,850 

10,000 Union Bank Stock — — - 9,850 

636 S. Smith & Buchanan, Geo. Williams, 

5th March 11,426 77 
W. M'C. do 325,000 

do do 314,000 

do do 25,000 

do do 97,875 

do do 25,000 

ditto Holins & M'Blair, 

June 2nd, 17,5000 
138 ditto Geo. Williams, 

June 7th, 85,000 
g04 ditto July 6th, 20,000 

783 shares & 5,500 at par B. U. S. — - 870,801 77 

82 Rebecca Ricaud 72 22nd March, 2,500 

669 J. & J. Sullivan 17th March 30,000 

670 ditto Geo. T. Dunbar 7,500 
68 ditto Calhoun & Matthews, 

23rd March 6,250 

64 ditto do. 25,000 

130 ditto 5th April 6,250 
192 ditto 30th do 11,875 

700 shares, 86,875 

181 H. Pay son, Wm. Lorman 30th do 6,250 
73 A. J. Schwartze, N. F. Williams, 

23rd March, 37,5000 

197 ditto " 4th May 7,500 

131 ditto " 5th April 13,000 

325 shares, 58,000 

85 Jno. Swan, 100 shares, 11th March 8,500 
121 D. A. Smith, 3rd April 15,000 
129 ditto 6th » 21,000 
745 ditto 2nd Feb. 19,000 

110 shares & gl0,000 H. de G. B. — 55,000 

124 Jno. Strieker, 200 shares 3rd April 25,000 

157 Thos. Sheppard, 100 shares 13th do 10,000 

17 Lem. Taylor, 150 shares, 29th March 15,000 



83 

767 Sarah Williams, 150 shares 13th April 15,000 

634 Geo. Williams, A. A. Williams, 1 ,775 shares, 

and 7,527 at par at B. U. S. 5th March 159,833 34 

21 Jno. L. Williams, 11th March 2,500 
161 ditto 20th April 3,420 
62 shares. 5,920 

62 Wm H. Winder, 23rd March 4,500 
193 ditto 4th May 5,225 
Pledge of Real Estate, 9,725 

7() N. F. Williams 325 shares, A. J. Schwartze, 

23rd March, 37,500 

88 C. & P. Wirgman, 28 shares 26th do 2,900 

136 Jno. White, 100 shares 7th April, 10,000 

151 C. D. Williams, 400 shares 13th April 30,000 

164 A. A. Williams, 103 shares, Geo. W T illiams, 

20th April, 11,875 

188 Peter A. Young, 4th July 10,400 

189 ditto Hu. Young » 2,600 

-104 shares. 13,000 



$3,393,729 40* 



Here it would be remarked, that James W. M'Culloh appeared 
to be a borrower on Stock, upon notes drawn by himself and en- 
dorsed by S. Smith & Buchanan or George Williams, to the a- 
mount of $588,801 01, exclusive of $3400, on 34 shares of stock, 
for his individual account, as already mentioned : S. Smith & Buc- 
hanan, upon notes drawn by themselves, and endorsed by George 
Williams or James W. M'Culloh, and in one instance by Hollins & 
M'Blair, to the amount of $870,801 77 and George Williams, on 
one note drawn by himself and endorsed by Amos A. Williams, 
to the amount of $169,833 34 : which three sums make a total a- 



* It is proper to remark, that the statement in this list of the property 
pledged, is taken from the Stock and Pay Lists of the same date (March 
8th 1819) transmitted by Buchanan and M'Culloh to Philadelphia. The 
books of the bank exhibit no account or statement whatever of the pledges 
on which notes called " Stock Notes" were discounted. 

In the same manner the account of the pledges contained in the real 
Stock List of November 14th, 1818, is taken not from the books, where no 
such account appears, but from the papers offered but not received in evidence 
as a copy of the Stock List transmitted on that day to Philadelphia. 



84 

mount of $1,629,436 12* instead of £645,400, which the list of the 
same date transmitted to Philadelphia, represented as the whole 
amount of their stock loans. 

It would also be remarked, he said, that by a comparison of 
these two papers, all the notes stated in the list transmitted to Phi- 
ladelphia, to have been discounted for these parties on pledges of 
Stock, appear to be fictitious, except the one for $97,875, which alone 
was found in both lists, and in the books. The "Credit Book" or 
Discount Ledger, containing an account of all notes discounted in 
the Branch, whether on pledgee of stock or personal security, was 
then inspected ; and no trace was found in it of any such notes, as 
those of gl37,500, $221,875 or $188,150. Mr. White the cashier 
was also examined in relation to these notes, and proved that none 
such were delivered to him by James W. M'Culloh, on his coming 
into office. 

The Attorney General then offered in evidence another paper 
signed by James W. M'Culloh as Cashier, and bearing date on the 
8th of March, 1819. It purported to be a list of Bills and notes 
discounted on personal security alone, and on hand that day.—* 
His signature to it was admitted, and it was proved to have been 
transmitted to the Parent board, about the time of its date. 

This paper is commonly called a " pay list," in reference to the 
nature of the loans of which it contains an account, and which are 



* It will be remarked that this sum of $1,629,436 12 exceeds by $87,300 
the sum of $1,542,136 12 which these parties had represented as the amount 
of their stock debt, and which was the amount of the notes delivered by 
James W. M'Culloh to John White the new cashier, as their stock notes. — 
This difference was produced by their omission of five notes, which really 
stood on the books as notes discounted on stock, for James W. M'Culloh or 
S. Smith & Buchanan, 



to that amount viz. one of 11,000 £ for James w M < Culloh 

« " 17,500^ 

« " 35,000 C 

and " " 20,0003 



" 17,5007 

« 35,000 C for S. Smith k Buchanan 



87,300 
add 1,542,136 12 stock notes delivered to "White 



Total jg 1,629,436 12 real Stock list of March 8th, 1819. 
Probably these five notes were omitted, because they were not considered 
by the parties as making part of their joint debt. One of them, that of 
$35,000 appears as part of the seperate debt of S. Smith & Buchanan. — 
The others do not appear in the lists of seperate debts, and have not been 
traced. 



S5 

expected to be paid at stated periods, as the notes become due- 
It is too voluminous for insertion, nor is its insertion necessary : for 
its whole importance depended upon its total amount, and on three 
notes with which it concludes. Its total amount, representing the 
sum total of loans then existing on personal security merely, as 
contradistinguished from loans secured or said to be secured by 
pledges of stock, or stock loans, was $4,259,959 87: which it 
stated to be the amount of the ■Ledger Balance." 

The three large notes with which it concluded were thus rep- 
resented on its face. 
1 . Drawn by George Williams and discounted for S. 

Smith & Buchanan, - - - g251,250 00 

1. Drawn by George Williams and S. Smith and 
Buchanan, endorsed by James W. M'Culloh, 
Cashier, and discounted for S. Smith and 

Buchanan, 325,000 0© 

I. Drawn by the same persons, endorsed by James 
W. M'Culloh, Cashier, and discounted for S. 
Smith & Buchanan, - 318,350 00 



Making a total of $894,600 00 

Which being added to the amount of the four notes 

on the stock list sent to Philadelphia, - - 645,400 Oft 



Made up the aggregate amount of g 1,540,000 00 

The Attorney General stated, that he would now offer evidence 
to prove, that those notes were entirely fictitious. It would be re- 
marked that being placed on the " Pay List," or list of notes dis- 
counted not on pledges of stock, but on personal security, they 
were necessarily represented to the Parent Board, by this act, as 
notes which had been regularly laid before the Branch Board, and 
discounted by them in the usual way. 

He would offer proof that no such notes had ever been laid be- 
fore that board, and that no trace of them appeared in the books ; 
where if thus discounted they must have been regularly entered. 
The " Credit Book," or Discount Ledger was then produced, and 
Andrew B. Bankson the discount clerk was called and examined. 
He proved that the "Pay List" of March 8th 1819, was in the 
hand writing of J. L. La Reintrie : That such lists are usually 
made out from the " Credit Book ;" but would be framed accord- 



86 

ing to the cashier's direction .* That no such note as any of these 
three appeared in the " Credit Book" as having been discounted 
on personal security : That he had made out lists of this kind, 
and always made them from the " Credit Book :" That such lists 
were not made by him in Mr. M'Culloh's time, but he has seen 
the clerks then employed in making them : That he thinks but 
one " Pay List" was made out for the Parent Bank, during 1 Mr. 
M'Culloh's time ; but that since ir. White came into office, Pay 
Lists were made out quarterly for that bank, and were prepared 
by the discount clerk : And that the Stock lists were prepared by 
the book keeper. 

On his cross examination he stated, that the offering book for 
discounts on personal security, or bills receivable, was kept by him, 
and the credit book and the offering book for discounts on stock, 
by Mr. Hughes the other discount clerk. 

The " Credit Book," or discount ledger was then examined for 
one year next preceding the 8th of March 1819, the date of this 
pay list, and- was found to contain no trace or mention whatever, 
of either of the notes for $25 1,250, or §3 18,350, stated in the pay 
list to have been discounted on personal security, by the Branch 
Board. Nor was there any trace found of any note for §325,000, 
having been discounted on personal security. A note of that amount 
did appear to have been discounted for S. Smith & Buchanan, as 
a stock note in the manner already explained, and it made part of 
the great stock debt of §1,542,136 12. But on this pay list it was 
represented as a note discounted by the directors, on personal se- 
curity, in the usual and regular manner. 

Mr. Bankson the witness being further examined proved, that 
when notes are offered for discount on personal security, they are 
lodged with the discount clerk, and entered by him in the offering 
book : That they are then laid with the offering book on the table 
of the directors ; by whom their acceptance if accepted is noted in 
the offering book ; after which the notes and offering book are re- 
turned to the discount clerk, who endorses and files the notes, 
and computes the discount on each : That the offering book is 
then handed to the book keepers, who enter the proceeds of the 
notes to the credit of the persons respectively, for whom they have 
been discounted. 

John M'Kim, Jr. one of the directors of the Baltimore Branch 
was then examined as to these three large notes, of §251,250, 
§325,000 and 318,000. Reproved that he became a director of 



87 

the Branch Bank on its first organization in 1816, and continued 
so till March 1819, when he was appointed a director of the Pa- 
rent Bank : That none of these three notes to the best of his re- 
collection were ever seen by him : And that he thinks they must 
have attracted his attention if seen. 

Thomas Finley was also examined on the same subject. He 
proved that he was a director of the Baltimore Branch, from De- 
cember 1816 to May or June 1819 ; and that he never to the best 
of his recollection saw any of these notes ; which must he thinks 
have attracted his attention, had he seen them. That he had an 
indistinct recollection of a large accommodation to George Wil- 
liams. 

John White was also called on this point. He proved that he 
was a director of the Baltimore Branch, from Nov. 27th 1817, to 
June -- - 1819, and that he never to the best of his recollection and 
belief saw any of these notes; which he thinks it probable he should 
recollect if he had seen them : That he attended pretty regularly 
but took no very particular interest in the business of the board : 
But that having since he came into the office as cashier of the Bal- 
timore Branch, made a careful examination in the bank, he can con- 
fidently say that no such notes as those of $25 1,250, or g318,350 3 
were there when he took possession of the office. 

James Beatty another of the directors was then examined. He 
proved that he became a director on the 27th November 1817, and 
continued till Nov. 27th 1820, during which period he was absent 
but three times from the meetings of the board : That he has not 
the least recollection of any such notes as these having been offer- 
ed for discount: And that he thinks he should recollect them had 
he ever seen them. 

The last of the directors examined on this point was Roswell 
L. Colt. He proved that he was a director of the Baltimore Branch, 
from Nov. 27th 1816 to Nov. 27th 1819 ; and that he has no recol- 
lection of any such discount having been granted, which he is con- 
fident he should have recollected had any such taken place when 
he was present, or within his knowledge : That he was sometimes 
absent several weeks in succession ; particularly in December, 1818 
and January, 1819. 

Being asked by one of the counsel for the Traversers, whether 
a committee of the board was not authorized to grant discounts, he 
answered that no committee had any such power. 



88 

Evidence was then adduced by the Attorney General, to prove 
that this pay list, containing these three large notes, two of which 
were entirely fictitious, and the other untruely represented as a 
note discounted regularly by the directors, on personal security, 
was the joint act of James A. Buchanan the President of the Branch 
^t the time when it was returned, and of James W. M'Culloh the 
Cashier ; and consequently furnished direct and positive proof of 
a combination or conspiracy between them. 

The first witness called for this purpose was Roswell L. Colt; 
who proved that being present at a meeting of the board, about the 
8th of March, 1819, he saw in the hands of James A. Buchanan s 
the President, a paper purporting to be a pay list; which was not 
laid before the board, or submitted to its inspection : That glancing 
his eye over the last page, he remarked these three large notes, 
which attracted his particular notice by their magnitude, and be- 
cause he had never heard of any such notes having been discount- 
ed by the board : That he then asked for the paper, with a view of 
examining it more particularly ; but instead of being given to him, 
it was delivered by the President to Lemuel Taylor one of the di- 
rectors ; immediately after which the board separated, and he saw 
no more of the pay list at that time : That he mentioned what he 
had seen to John M'Kim, jr. a Director of the Parent Board, who 
was soon to go to Philadelphia, and requested him to examine the 
pay list there, and on his return to inform him, the witness, what it 
contained: And that not long afterwards he, the witness, went 
himself to Philadelphia, where he inspected the pay list from the 
Baltimore Branch, which he found to agree in date and appearance 
with that now in evidence and believes to be the same. It contain- 
ed the three large notes in question. He also believes it to be the 
same paper which he saw in the hands of James A. Buchanan, at the 
board in Baltimore. 

John M'Kim, jr. was then called again and examined on this 
point. He proved that he saw a pay list in Baltimore, about the 
9th of March, 1819, shortly before he went to Philadelphia. That 
it was shewn to him and George Hoffman, then a Director of the 
Parent Bank, by James W. M'Culloh : That he saw in it these 
three large notes, which he had never seen before the Branch Board, 
and being surprised to find them there, he took a memorandum of 
them : That he understood that this pay list was to be sent to the 
Parent Bank ; where he afterwards saw a pay list similar to it, 
which was carried up by M'Culloh, and which he believes to be the 



8£ 

same : That James A. Buchanan and George Williams went to 
Philadelphia with M'Culloh, to attend the Parent Board, when the 
pay list was carried up : That he believes the pay list which he saw 
there, before the board, to be the same now in evidence : And that 
he pointed out to the Parent Board these three notes, as notes which 
to*the best of his knowledge and belief had never been before the 
. Branch Board. This was in April, 1819, when he had become a 
Director of the Parent Bank. 

John Oliver was then called and examined. He proved that 
being a director of the Parent Bank, he was in Philadelphia attend- 
ing the Board, before the final settlement with the Traversers in 
May. He thinks it was in April. That John M'Kim, jun. was 
there at the same time ; and stated to the Parent Board that the 
pay list from the Baltimore Branch contained several notes which 
had not, as he believed, been discounted by the Baltimore Board, 
and which he pointed out ; but the witness did not recollect the 
particular description of the notes: That George Hoffman also 
pointed them out at the same time to the Parent Board, of which 
■he was a member : and that R. S. Colt arrived in Philadelphia about 
the same time. 

In answer to a question by the counsel for the Traversers, he 
stated that the directors of the Branch Bank have access to the 
Letter Book. 

George Hoffman was then examined. He proved that he be- 
came a director of the Parent Bank in January, 1819: That he 
went to Philadelphia in April, 1819, to attend a meeting of the 
Board of Directors ; and that before he went up, he and John 
M'Kim, jun. saw at the house of James W. M'Culloh, and in his 
possession, the pay list prepared, as they understood, for the Parent 
Board : That having heard it mentioned, he had called on M'Culloh 
for a sight of it, with Mr. M'Kim ; and when they received the list, 
took it down to the Bank to examine it : That having done so, they 
returned it to M'Culloh, who had informed them that he was going 
with it to Philadelphia, and wished to get it back from them, as soon 
as they could conveniently return it. That it contained the three 
large notes in question, and he believes it to be the same paper now 
in evidence ; and that he afterwards saw it before the Parent Board 
in Philadelphia, where he pointed out these three notes among 

13 



90 

others, and informed that Board that they had not, as he believed, 
ever been before the Branch Board in Baltimore.* 

The minute book of the Parent Bank was then produced and 
proved. From this it appeared that John M'Kim, jun. John Oliver, 
and George Hoffman, attended the meeting of the Parent Board, 
on the 12th of April, 1819. 

John Hoffman was also examined as to this point, and proved 
that he came into the Baltimore Branch as a director, in December, 
1818: That the Board frequently expressed a wish to have a pay 
list, not only in obedience to the order of the Parent Board, but for 
its own information : That such a list was often promised by the 
officers; and at length some time in March, 1819, the president, 
James A. Buchanan, appeared at the Board with a pay list in his 
hand, or a paper said by him to be one, which the witness did not 
read, but he believes from his recollection of its appearance to be 
the same now in evidence.* 

The Attorney General then turned to the minute book of the 
Parent Board, and read from it the following minute, under the date 
of March 16, 1819, 

" Extract from Minutes, March 16, 1819. 
"The Cashier laid before the Board the pay lists required by 
resolutions of this Board from the offices of Baltimore and Pitts- 
burgh. 

"The President stated to the Board, that the President and 
Cashier of the office at Baltimore were now in this city, and wished 
to make certain explanations relative to some of the items in the 
pay list of that office. Permission being granted, Messrs. J. A. 
Buchanan, president, and J. W. M'Culloh, cashier of the office at 
Baltimore, gave verbal explanations, and the subject was referred 
to a committee consisting of Messrs. Connelly, Chauncey, Calhoun, 
Lippincott, and Sergeant." 

General Harper, on the part of the prosecution, then produced 
and offered in evidence a paper in the hand writing of James W. 
IVl'Culloh, without date, and purporting to be a statement of the 
loans obtained jointly by him James A.Buchanan and George Wil- 
liams, on the security of stock. It would be recollected, he said, 

* Mr. Hoffman was examined in a subsequent stage of the case % having 
been prevented by indisposition from attending at first. His testimony on 
this head is introduced here for the sake of method and connexion. 

* This witness also was examined in a subsequent Stage of the trial, in 
the early part of which he did, not attend, 



9* 

that by the stock list of March 8th, 1819, transmitted by these 
persons to the Parent Bank, they had represented themselves as 
borrowers on stock to no greater amount than §645,400, exclusive 
of the loan of £3,400 obtained by James W. M'Culloh on his sepa- 
rate account ; and that in the pay list of the same date, they had 
represented the residue of their debt, to the amount of §894,600, 
as having arisen from discounts regularly obtained on personal se- 
curity. This paper oc would prove, by their own admission, that 
the whole debt, including both sums, arose from loans obtained by 
them on supposed pledges of stock ; and consequently, that both 
statements were false and deceptious. It would also disclose 
many other facts, on which reliance would be placed in the pro- 
gress of the case. He then called a witness to prove that the paper 
was in the handwriting of James W. M'Culloh, and had been pre- 
sented by him and his associates, James A. Buchanan and George 
Williams, to the committee of the Parent Bank, appointed to make 
an arrangement with them, on the subject of their debts to the Bank. 
Its date, he said, he should attempt afterwards to establish. Gene- 
ral Winder, on the part of the Traversers, admitted the paper to 
be in the handwriting of M'Culloh ; and that it was delivered to the 
Parent Bank, by all the parties, on the 16th of March, 1819, when 
the stock and pay lists of March 8th, 1819, were presented. 

General Harper replied, that he would accept the admission as 
to the handwriting, which he was prepared to prove ; but not as to 
the time when, or the persons to whom it was presented. He 
should endeavour to shew, that it was presented after the 1 6th of 
March, and not on that day, and to the committee of the Parent 
Board then appointed, and not to the Board itself. He then gave 
the paper in evidence, and read it to the court, as follows t 



We own 47,398 shares of United States Bank Stock, and we have 
borrowed of the Bank United States and this office, on this 
account, §3,497,700, viz: 

At the Bank United States, par on 18,290 shares 

hypothecated in Bank, - - - - §1,826,100 00 
25 advance on 5,264 thereof, - - - 131,600 00 , 



1,957,700 00 



At office Disc, and Dep. 25 adv* on 13,026 shares $ 325,650 00 



Par on 2,558 shares in the office, 8255,800 00 
25 adv. on 2,558 do. 63,950 00 



2,283,350 00 



319,750 00 



25 adv. on 13,000 shares placed at par in London, 

Liverpool, Boston-and New -York, - 325,000 00 

55 adv. on 10,050 shares placed in N. York and 

Liverpool, at par, - 251,250 00 



83,179,350 00 



And we have 3,500 shares placed in Liverpool at 
8125. 

Upon 47,398 shares, we have borrowed at the of- 
fice above the 8125, to secure it from loss 
when stock was at 8150 per share, * 318,350 00 



83,497,700 00 



RECAPITULATION, 

10,400 at New-York and Liverpool, at par. 
1 1,500 at London and Liverpool, do* 
1,150 at Boston. 

23,050 out of Bank, at par. 
18,290 in Bank. 

2,558 in Office— 20,840 in Bank. 

3,500 at Liverpool, at 8125. 



47,398 shares. 

General Harper then called the attention of the court to the 
extract from the minutes of the Parent Board of the 16th March 
1319, and remarked that the minute on this subject, only spoke 
Of " verbal explanations," as having been given to the board on 
that day, by James A. Buchanan and James W. M'Culloh ; an ex- 
pression which could not with propriety have been used, had so 
important a "written explanation" as the paper x contained, 
been then presented. He also adverted to the absolute silence of 



93 

die minutes, as to any " written explanation," or any written com- 
munication whatever, except the stock and pay lists of March 8th 
1819 ; and said that he should rely on these circumstances among 
others, as proof that the paper oc was not presented at that time* 
nor to the Parent Board. 

He also produced from the same minute book, and read in evi- 
dence, the report of the committee mentioned in the minute of 
March 16th 1819, to shew that it was founded on the statements 
contained in the paper x ; from which he should infer and con- 
tend, that this paper was produced by the Traversers to the Com- 
mittee of the Parent Board, and not to the Board itself, and was 
formed for the express purpose of being so produced, after the 
Traversers had discovered by their conferences with the Commit- 
tee, that the stock and pay lists must be abandoned, and the truth 
confessed. 

This Report is as follows ; 

u Jit a meeting of the President and Directors of the Sank of the 
United States, 30th March, 1819. 

" The Committee appointed for the purpose made the following 
report, viz: 

The Committee to whom was referred the subject of the debt 
due by Messrs S. Smith & Buchanan, George Williams and James 
W. M'Culloh, 

Report, That the gentlemen are indebted to this institution on 
stock notes, which have been discounted at this bank and the 
branch at Baltimore, to the amount of 83,497,700. That there are 
for the security of this sum, only 20,845 shares of the bank of the 
United States pledged directly to this institution. That these gen- 
tlemen are represented to be owners, and as your Committee be- 
lieve, are the owners of 26,550 other, shares, which it is understood 
are pledged in London, Liverpool, New York and Boston, to se- 
cure the payment of sums considerably exceeding the par value 
thereof, and that, subject to the satisfaction of these sums, they are 
pledged at the Office at Baltimore, as a security for portions of the 
sum due to this institution, as above mentioned. That these seve- 
ral pledges, and the personal liability of these gentlemen, are the 
only securities which the bank has for the debt due it. That these 
gentlemen are debtors to the branch at Baltimore on their person- 
al liability, viz : Messrs. S. Smith & Buchanan, as payers, for 
$167,000, and Mr. George Williams for the sum of $ 189,000.—- 



94 

TWt in the communications between the committee and the gen- 
tlemen, they have desired to obtain an extensive indulgence in the 
payment of their debt, which the committee have been willing to 
recommend to the board, provided adequate security should be gi- 
ven. That the result of many conferences and a good deal of deli- 
beration, has been an offer on the part of the gentlemen to give the 
following security : — the 20,848 shares of the Bank of the United 
States, directly pledged to the Bank, shall be estimated as an ac- 
ceptable security, together with their joint personal responsibility, 
for $2,597,700, which is to estimate these shares at about $125 per 
share. That the shares not pledged to the bank in the first instance, 
shall be liberated from the pledge to the bank, and that these gentle- 
men shall each secure to the bank, being separately and not jointly 
liable, the sum of $300,000, making together $900,000, and with the 
sum to be secured by the 20,848 shares pledged in the first instance to 
the bank, making the sum due by them on stock notes, viz: $3,497,700 
That Messrs. S. Smith & Buchanan offer as their security John 
Bounell, Esq. of Baltimore for the sum of $300,000. That Mr. 
Williams offers Lemuel Taylor, Esq. of Baltimore for $100,000, 
Real Estate in the state of Maryland said to be worth $100,000, and 
Mr. A. A. Williams and Mr. C. D. Williams, his brothers, or one 
of them, being uncertain whether he can get both to become his se- 
curities, for the sum of $100,000. That Mr. M'Culloh has offered 
sixteen gentlemen of Baltimore, who are to become bound, each se- 
parately, for $12,500, and Real estate in Maryland estimated by 
him to be worth $60,000; and prays that for the remaining $40,000 
his own note with Messrs. S. Smith & Buchanan and Mr. Williams 
may be accepted. The Committee report herewith, as explanatory 
of the offers of Messrs. Williams & M'Culloh, a letter from Mr. 
Lemuel Taylor to Mr. Williams, and a letter from Mr. M'Culloh 
addressed to Messrs. S. Smith & Buchanan. The indulgence re- 
quired is as follows : One fifth payable on or before the day of 
July 1820, and four fifths in two, three, four and five years, from the 
first day of April next, in equal payments. That in the opinion 
of the Committee, (the reasons for which it is unnecessary to assign 
in this Report) the indulgence desired by these gentlemen ought 
to be granted. That the 20,848 shares of the Bank of the United 
►States, pledged in the first instance to the Bank, ought to be accept- 
ed as a security together with the joint personal responsibilities of 
the parties, for the sum of $2,597,700. Provided they shall give 
undoubted security each for the sum of $300,000 so as effectually 



95 

to secure the balance of $900,000. That, in their opinion Mr. 
Donnell ought to be accepted as the security of Messrs. S. Smith 
& Buchanan — But that they are unable to form any opinion of the 
security offered by Messrs. Williams and M'Culloh. They there- 
fore are of opinion that the subject of the sufficiency of the secu- 
rity offered by the later gentlemen, should be referred to the mem- 
bers of this Board residing in Baltimore, viz . Messrs. Oliver, 
M'Kim and Hoffman, to enquire and report to this Board. And 
the committee think that the unanimous opinion of theet gentle- 
men should- be required on the point to satisfy the Board. The 
Committee feel it a duty to remark, which they do with no inten- 
tion to suggest doubts of the sufficiency of the gentlemen, that Mr, 
A. A. Williams is liable as a payer in the Branch at Baltimore, in 
the sum of §104,1 74 53, and as endorser for the sum of $70,500., 
and Mr. C. D. Williams, as a payer, in the sum of 81,347 50 and 
an endorser in the sum of §56,932 78. 

And, finally, the Committee recommend the adoption of the 
following Resolves: 

1st. That in the opinion of the Board, the offer of Messrs. S. 
Smith & Buchanan, George Williams and J. W. M'Culloh, be ac- 
cepted, and the indulgence they require granted, provided the se- 
curity for the sum of §900,000 be rendered undoubted. 

2nd, That the subject of the sufficiency of the security offered 
by Messrs. Williams and M'Culloh, be referred to Messrs. Oliver, 
M'Kim and Hoffman, and that they report thereon to this Board* 
3rd, That Messrs. Williams and M'Culloh be requested to fur- 
nish to this Board, an accurate schedule or description of the rea? 
estate, which they propose to mortgage. 

4th, That if Mr. M'Culloh secure, in a satisfactory manner, the 
sum of §260,000, the joint responsibility of himself and Messrs. 
S. Smith & Buchanan and Mr. Williams be accepted as a security 
for the remaining §40,000. 

It is understood that the sum due to the Bank shall continue 
to have the form of bank transaction by promissory notes, and be 
renewed and the interest paid every sixty days, and that the secu- 
rity to be given shall stand and remain as a security for the full 
and final payment of the debt, according to the terms of this a- 
greement, and of the interest as it shall become due on the several 
renewals. 

It is also understood, that if the stock pledges should rise at 
any time to §125 per. share, the Bank shall be at liberty to sell the 
whole or any par t thereof. 



"On motion the consideration of the first and fourth Resolutions 
recommended in the foregoing Report, was postponed, and the se- 
cond and third Resolutions adopted." 

The counsel the» remarked, that according to this statement, 
x, the Traversers held in March, 1819, 47,398 shares of the stock 
of the Bank of the United States, on which they borrowed from the 
Parent Banl and the office at Baltimore, $3,497,700. He should 
endeavor, he said, to shew the average priee at which they had 
bought tAese shares ; from which if it should turn out to be what 
he supposed it was, some very important inferences, in relation to 
this? case, would be drawn. For this purpose he called and exam- 
ined Dennis A. Smith, who proved that he sold to the Traversers, 
in the months of April, June and December, 1817, three parcels of 
stock, to the amount in the whole of 31,940 at different prices, 
the average of which was $\ 37 per share, or 37 per cent above par; 
but he did not know for what number of shares they originally sub- 
scribed, nor the prices at which they purchased the rest of their 
stock : consequently the attempt to prove the average cost of all 
their stock failed.* 

Roswell L. Colt was then called again, and examined on the 
part of the state, as to the prices of the stock of the Bank of the 
United States, during the period through which this operation un- 
der the name of stock loans extended. He proved that from the 
1st of April 1817, to the 7th of June 1819 inclusive, he was very 
frequently, indeed almost daily, engaged in purchases and sales of 
bank stock, of which he kept an exact and regular account. From 
this account he gave the following statement, of the prices of 
stock either bought or sold by him, with the days on which the pur- 
chases and sales took placet 



* It is proper to add, that James "W. M'Culloh, afterwards and during the 
trial, made out a statement, from such documents as he stated then to be in 
his power. It shewed that the average cost of the whole mass of their stock 
was considerably higher than had been supposed by the counsel for the pro- 
secution. To this was to be added a large sum, for commissions and other 
expenses. This statement was put into the hands of the counsel for the 
prosecution, to be used if they thought proper; but they did not use it, or 
press this part of the case any further. ' 

f This testimony and all that follows was introduced in a subsequent stage 
of the trial It is reported here to preserve the connexion. 



97 



April 1 1817 


Price 118 per cent 6 njpnths credit. 


14 


117-i 


14 


126 13 do 


15 


117i 


May 12 


125 dividends to me, 12 months credit 


18 


127£ 


28 


12% 




130 




130 


29 


140 deliverable 1st Sept. and div. to me 




136 




138 do 1st Oct. do 


31 


130£ 


June 9 


131 


12 


1311 


23 


140 deliverable 10th Jan. dividend to me, 


July 10 


140} 


Sept. 1 


137 


24 


147^ 


30 


151 


Oct. 4 


150 


6 


156 payable 4th May 1818 


18 


154 (90 days) 


16 


155ffo 60 days* 


16 


™m* 


21 


150* 


21 


148£ 


21 


1 sq6 l 


Nov. 4 


150 


28 


156^- 90 days 


Dec. 1 


150 


30 


157^ 75 days 


Jan. 1 1818 


146 percent 


10 


150 


14 


152 


20 


150 


29. 


149 


March 11 


145 


April 1 


145al47 


3 


1431 


9 


143 



14 



98 

April 15 1818, Price J42 percent 

21 140 

23 137 

May 1 HOI 

4 137 

8 139 

June 1 141 

8 141 

10 141 

16 144 

July 1 136 

27 131 



29 



n 



31 130 

Aug. 3 135 on time 

8 w% 

12 130| on time 

14 130 do 
17 I28f 

22 128J 

31 126| 

Sept. 24 128 . 

29 129 
Oct. 14 126 

15 125 
21 H4| 
24 114 

Nov. 9 112 

15 112all5 
27 114 

30 113all3J. 
Dec. 10 HO per cent 

21 113 

26 HO 

Jan. 7 1819 HO 

11 107 

Feb. 1 100 

3 100 

16 WS* 
18 105 
25 105 






99 



March 1 


1819, 


Price 


114 per cent 


8 






111 


25 






112 


27 






115 


April 1 






100 


21 






102£ 


28 






103} 


May 3 






103 


6 






I04i 


10 






102J 


19 






102 


June 7 






921 


True copy 


from Mr. Colt's statement, 








T 



B. RUTTER. 

"April 1, 1823. 

General Harper then adduced evidence to prove, that a very 
large part of the debt thus contracted by the Traversers, under co- 
lour of loans upon pledges of stock, had been totally lost by the 
Bank of the United States. 

For this purpose he produced and read in evidence, from the 
minute book of the Parent Bank, a report made to it on the 10th of 
April, 1819, by a committee consisting of the members residing in 
Baltimore. It is as follows : 

April 10, 1819. 

« The committee appointed to ascertain the sufficiency of the 
security offered to this Bank by Messrs. George Williams and 
James W. M'Culloh, made the following Report, viz: 

" Report of the members of this Ra^H. ^mf.^ i" naramore, 
to whom has been referred the sufficiency of the security tendered 
to the Bank by Mr. George Williams and Mr- James VV. M'Culloh. 

" This committee having received a copy of a report and resolu- 
tion offered for consideration and adoption by the Bank, by a com- 
mittee appointed in the case, as also a letter from the president of 
the Bank, containing explanations and information on the same* 
proceeded to the attainment of the object committed to their judg- 
ment and care ; after various communications, both written and 
verbal, with the parties, they report the following arrangements : 

" Mr. George Williams handed a list of real property, &c. 
amounting; as per estimate, to the sum of g 105,832, intended to 
secure the sum of $ 100,000. The committee considering it placed 






100 

or rated as insecure, from the fluctuations of the market price, 
agreed to receive it at a valuation of 875,000 ; the difference be- 
tween which, and the sum intended to be secured in this manner, 
viz. $25,0CO, Mr. Williams has engaged to pass his note to the 
Bank, endorsed by Messrs. S. Smith & Buchanan, which has been 
approved of by the committee. 

" In the second item of Mr. Williams's proposition, for the secu- 
rity of another §100,000 by the endorsement of Mr. Amos A. 
Williams. The committee having taken into view the magnitude 
of the amount, and the length of its duration, requested additional 
endorsers for the one half of the said sum ; Mr. George Williams 
has engaged to pass his notes, endorsed by Mr. Amos A. Williams, 
for $50,000, an( j a i so his notes endorsed by Mr. Amos A. Wil- 
liams and Messrs. S. Smith & Buchanan, for the other amount of 
$50,000. Under this arrangement we approve of this security. 

" On the other proposal of Mr. George Williams for the secure- 
ment of the remaining $100,000, by the endorsement of Mr, 
Lemuel Taylor, the committee are constrained to say they could 
not concur in the acceptance of this security to such extent ; for, al- 
though Mr. Taylor is at present in good credit, and is possessed of 
considerable property, yet we also perceive that he is already bound 
by other personal security to the bank to a large amount, being also 
extensively concerned in commercial transactions, is now more 
than usually exposed to the vicissitudes attendant on the same, 
Mr. Taylor's letter to Mr. George Williams on the subject of this 
security, as also in a communication t© this committee, proposes to 
place at the control of the Bank 3,000 shares of the stock of this 
Bank (including about 1400 shares-already with it) with permission 
to a raw au *«~<« ir ^ n f $g5 Der s h are on the entire of the said 3,000 
shares, and will pledge their value, above the sum of $85 per share, 
to the Bank, as an additional or collateral security, for the faithful 
payment of the said sum of $100,000 thus to be endorsed by him; 
this would be an additional security at the present, or at the par 
value of the stock, of about one half the sum of his security. Your 
committee cannot therefore but advise, that this proposal should be 
accepted, on the principle of its being more than usual security, al- 
though it should be at some inconvenience at present to the Bank 
in advancing the sum implicated. 

" Mr. James W. M'Culloh proposed to the committee to mort- 
gage three farms he possesses in Maryland, to secure. the,amount of 
$60,000. The committee considering them as not sufficiently va- 



101 

luable to secure with certainty that sum, have agreed to place them 
at a valuation of 840,000, and Mr. M'Culloh has engaged to pass 
his notes, endorsed by Messrs. S. Smith & Buchanan and George 
Williams, for the remaining amount, making together, (with the 
former sum offered) the amount of $60,000. Of the sixteen names 
suggested by Mr. M'Culloh, each for the sum of 812,500, to secure 
an amount of $200,000, three of those names have been withdrawn, 
and three others have been objected to by the committee. Mr. 
M'Culloh has therefore engaged to place the endorsements of 
Messrs. S. Smith & Buchanan, and George Williams, on the notes 
of those three objected to, and to give his note, with those same en- 
dorsers, for the three which have been withdrawn, and having also 
declared and pledged himself to the committee, that he considers 
himself bound to give other security to the Bank, in case any of 
those persons bound for him should, from casualty or misfortune, 
become unable to pay, at any time before the whole debt is liqui- 
dated, but which is not expected. Your committee are satisfied, on 
the whole, that the security offered by Mr. James W. M'Culloh 
should be accepted, and accordingly recommend the same. 

" It is but justice to state, that a good disposition was manifest- 
ed from all the parties, to meet the objects of the committee, as far 
as practicable. 

" Annexed is a list of the names* as securities for Mr. M'Cul- 
loh, each in the sum of $12,500, thirteen in number; and accom- 
panying this Report is a schedule of the real property, &c. to be 
mortgaged by the parties ; also two letters, relative to the contents 
of this Report. 

* Signed, JOHN OLIVER, 

JOHN M'KIM * < 
GEORGE HOFFMAN. 

" The foregoing report, with the documents accompanying the 
same, was referred to the committee appointed on the same sub- 
ject, on the 16th ultimo." 

The next evidence produced and relied on by the counsel for 
this purpose, consisted in sundry proceedings of the Parent Board, 
on April 12th, 1819, in reports made to it on the 14th and 17th of 



* Henry Payson, Isaac Edmonson, Solomon Etting, A. J. Schwartze, 
Isaac Phillips, Christopher Deshon, Jeremiah Sullivan, Thomas Marean, 
Henry Didier, John F. Pod*, Thomas Sheppard, Thomas Finley, N. F. 
Williams. The three latter endorsed S. S. & B. and G. W. 



102 

May m the same year ; in certain proceedings of the Board, on 
the 1 8th of the last mentioned month ; and in a report made to it 
and adopted by it on the 5th of October in the same year ; all of 
which were read from the original minute book of the Parent Bank, 
and are as follows ; 

"April 12, 1819. 
The committee appointed on the 16th ultimo, to whom was re- 
ferred the Report of the committee appointed on the sufficiency of 
the security offered to this Bank by George Williams and James 
W. M'Culloh, with the documents accompanying the same, recom- 
mended the adoption of the said Report, which was, on motion, 
agreed to unanimously. 

On motion, the Board resumed the consideration of the first 
and fourth resolutions contained in the Report of a committee 
made on the 30th ultimo, and adopted the same unanimously, viz : 
1st. That, in the opinion of the Board, the offer of Messrs. S, 
Smith & Buchanan, George Williams, and James W. M'Cul- 
loh, be accepted, and the indulgence they require granted, pro- 
vided the security for the sum of $900,000 be rendered un- 
doubted. 
4th. That, if Mr. M'Culloh secure in a satisfactory manner, the 
sum of $260,000, the joint responsibility of himself and Messrs. 
S. Smith & Buchanan, and Mr. Williams, be accepted as a se- 
curity for the remaining g 40,000. 
On motion, 

Resolved, That the Report of the Committee made on the 30th 
ultimo, together with the Report of the Committee on the security 
ottered ny m^o« m Williams and M'Culloh, be referred to Messrs. 
Oliver, M'Kim, and Hoffman, to prepare, with the aid of counsel, 
the necessary papers to carry into effect the arrangements with 
Messrs. S. Smith & Buchanan, George Williams, and James W. 
M'Culloh, to be submitted to this Board for its approbation, pre- 
vious to their being executed. And it was further 

Resolved, That the lien to be taken on the real estate of Geo. 
Williams and J. W. M'Culloh, be in such form as the said com- 
mittee shall, under advice of counsel, deem most advantageous to 
the interests of the Bank. 

• "l<Wi May, 1819. 
The committee of the members of the board from Baltimore, 
who were charged with completing the arrangement with Messrs. 



103 

S. Smith & Buchanan, George Williams and James W. M'Culloh, 
reported sundry documents, which were referred to the committee 
appointed on the subject, to report at the next meeting of the board. 

« \7th May, \819. 
The committee on the debt due by S. Smith & Buchanan, Geo* 
Williams and James W. M'Culloh, made the following report, 
which was read and adopted : 

The committee to whom were referred the documents and se- 
curities which were reported to the board by the committee of the 
board residing in Baltimore, to whom had been referred the execu- 
tion of the arrangement, formerly reported by this committee, be- 
tween Messrs. S. Smith & Buchanan, George Williams and Jas. 
W. M Culloh, 
Report : 

That for the purpose of securing the sum of $900,000 
part of the debt due by Messrs. S. Smith & Buchanan, George 
Williams and James W. M'Culloh, there are the following docu- 
ments and securities, viz:— 

I, To secure §300,000, which, according to the arrangement which 
was to be executed, were to be secured by Messrs. S. Smith & 
Buchanan, there are four promissory notes dated 1 1th May, 1819 
drawn by Messrs. S. Smith & Buchanan, payable to Messrs. 
John Donnell, William Patterson and John Spear Smith, each 
for the sum of $60,000, endorsed by the payers, and payable^, 
one on the 1st of April, 1821, one on the 1st of April, 1822, 
one on the 1st of April, 1823, and one on the 1st of April, 
1 824, making together - . . _ §240,000; 

And S. Smith and Buchanan's promissory note, 
endorsed by Lemuel Taylor, dated 11th of May, 
1819, at 30 days for ...... 60,000 



300,000 
II. To secure the like sum, which was to be secured by Mr* 
George Williams, there are 

I. Five promissory notes drawn by George Williams 
and endorsed by Lemuel Taylor, each for the sum 
of g20,000, dated 8th of May, 1819, and payable, 
one of them; on each of the following clays, viz: — 
20th of July, 1820— 1st of April 1821, 1822, 1823, 

and 1824, - g 100,000. 

II. Five promissory notes drawn by G. Williams and 
endorsed by Amos A Williams, each for the sum of 



i(M< 

$1 0,000, and payable, one of them on each of the 
following days : 20th July 1820, 1st April 1821, 1822, 
1823 and 1824, dated each 8th May 1819, - $50,000 

III. Five promissory notes drawn by G. Williams and 
endorsed by S. Smith & Buchanan, each for $ 10,000, 
and payable, one of them, on each of the following 
days, 20th July 1820, 1st April 1821, 1822*1823 and 

1 824, dated each 8th May 1819, - - - $50,0 0$ 

IV. Five promissory notes drawn by G. Williams in 
favor of the Bank of the United States, each for the 
sum of $15,000, dated 8th May 1819, and payable 
one of them on each of the following days, 20th July 
1820, 1st April 1821, 1822, 1823, and 1824 $75,000 
Five promissory notes drawn by G. Willi- 

liams, in favor of S. Smith & Buchanan, 
and by them endorsed, each for the sum of 
$5,000, darted 8th May 1819, and payable, 
one of them on each of the following days, 
20th July 1820, 1st April 1821, 1822, 1823 
and 1824 - - - - - 25,000 



•100,000 



$300,000 
The last or 4th Class of promissory notes given by G. Williams, 
amounting to $100,000, are secured by a mortgage of real estate, 
valued by the committee residing at Baltimore at $65,000 ; also of 
230 shares of the capital or joint stock of the Franklin Manufac- 
turing Company of Maryland, and 112 shares of the capital or 
joint stock of the Union Manufacturing Company of Maryland* 
This real estate and other property so mortgaged, according to the 
terms of the mortgage, are made liable, first for the payment of 
the notes payable to the Bank of the United States, amounting to 
$75,000, and afterwards, for the payment of those endorsed by 
Messrs. S. Smith & Buchanan, amounting to $25,000. 

The additional security on the notes endorsed by Lemuel Tay- 
lor, by a pledge of shares of the stock of the Bank of the United 
States to the number of 3,000, on an advance at the rate of 85 
dis. per share, has not been obtained, except so far as the agree- 
ment contained in his letters, which have been referred to in for- 
mer reports on this subject, shall be binding on him, and except so 
far as the 1,400 shares already pledged to the bank, which were to 



105 

form part of the number of 3,000 shares, which were said to be 
pledged at $95 per share, and on which some payments may have 
been subsequently made, may be subject to that agreement. 

3rd. To secure the sum of $300,000, which were to be secur- 
ed by James W. M'Culloh, there are 
I. Five promissory notes drawn by J. W, M'Culloh, 
payable to the Bank of the United States, each for 
the sum of $8,000, dated 12th May 1819, and paya- 
ble, one of them, on each of the following days, 20th 
July 1820, 1st April 1821, 1822, 1823 and 1824, *$40,000 

II. Five promissory notes of J. W. M'Culloh, payable 
to George Williams and endorsed by him and S. 
Smith & Buchanan, each for the sum of $11,000, 
dated 11th May 181$j and payable one of them on 
each of the following days, 20th July 1820, 1st April 
1821, 1822, 1823 and 1024, - - - - 55,000 

III. Five like promissory notes, of the same sums dates 
and periods of payment, except that they are paya- 
ble to S. Smith & Buchanan, and endorsed by them 
and George Williams - = - - 55,000 

IV. Five promissory notes drawn in favor of each 
of the following persons by James W. M'Culloh, 
and by them respectively endorsed, each for the 
sum of $2,500, dated 11th May 1819, and payable, 
one to each person, on each of the following days,- 
20th July 1820, 1st April 1821, 1822, 1823 and 1824, 
viz: 



Solomon Etting, 


five notes, 


$2,500 


$12,500 


Henry Payson, 


ditto 


ditto 


12,500 


C. Deshon, 


ditto 


ditto " 


12,500 


Isaac Phillips, 


ditto 


ditto 


12,500 


Henry Didier, Jr. 


ditto 


ditto 


12,500 


J. Sullivan, 


ditto 


ditto 


12,500 


Thos. Marean, 


ditto 


ditto 


12,500 


A. J. Schwartze, 


ditto 


ditto 


12,500 


Isaac Edmondson 


, ditto 


ditto 


12,500 



112,500 

* This sum is secured by a mortgage of Real Estate, valued at the same 
•urn by the Committee of the Board resident at Baltimore. 

Id 



106 



V. Three like promissory notes of the same sums, 
dates and periods of payment, payable to the follow- 
ing persons and by them respectively endorsed, and 
also endorsed by G. Williams and S. Smith & Buch- 
anan, viz : 

Thomas Sheppard, five notes, 182,500 g!2,5C0 
Thomas Finley, ditto ditto 19,580 

N.F.Williams, ditto ditto 1-2,500 

37,500 



$300,000 
which complete the documents and securities intended to secure 
the principal of the sum of $900,000 before mentioned. 

Under these securities Messrs. S. Smith & Buchanan, George 
Williams and James W. M'Culloh are respectively liable as prin- 
cipals, severally and not jointly, for the sum of $300,000. But the 
debt is still to continue a bank debt, and be in form renewable eve- 
ry sixty days, (interest being paid at each renewal) until the pay- 
ment of the said sum of $900,000 shall be completed, according to 
the tenor and eSect of the promissory notes herein before stated 9 
and the said parties are to be jointly liable for the interest: and 
the renewals are to made in the form of their several notes, paya- 
ble to the bank. , For this purpose the said S. Smith & Buchanan, 
George Williams and James W. M'Culloh have given their promis- 
sory notes, as follows, viz : 

S. Smith & Buchanan to the President Directors and 
Company of the Bank of the United States, dated 
11th May 1819, at 60 days, - - --'.'- $300,000 
George Williams, to the President Directors and Com- 
pany of the Bank of the United States, dated 11th 

May 1819, at 60 days, 300,000 

James W. M'Culloh, to the President Directors and 
Company of the Bank of the United States, dated 
11th May 1819, at 60 days - - - - 300,000 



S 900,000 
And the said parties have executed their joint and several bond, 
in the penal sum of §300,000, conditioned for the punctual pay- 
ment of the interest, on the renewals of the said notes. 

The Committee have examined all these documents and secu- 
rities, and, in their opinion, they are in correct form and regularly 
executed, with the following exceptions : 



107 

1st. The notes of George Williams payable to the Bank and to S. 
Smith & Buchanan, and secured by a mortgage are recited in 
the mortgage to be dated 1 lth May 1819, but are in fact dated 
8th May 1819. This, the Committee is advised, is an immate- 
rial mistake, and is only here recorded that it may serve as an 
explanation hereafter, should any be wanted. 
2nd. The shares in the Franklin Manufacturing Company mort- 
gaged by G. Williams, have not yet been transferred to the 
Bank, but the Committee of the Board residing in Baltimore 
have a joint and several power from G. Williams to transfer 
same. 

The Committee further report, that in the general arrangements 
it was contemplated to transfer so much of the debt which was the 
subject of the former reports by this Committee, as stood on the 
books of the Office at Baltimore, to the Bank : And the Commit- 
tee beg leave now to state, that the said debt has heretofore stood 
as follows : 

In the Bank at Philadelphia, on a pledge of eighteen 
thousand two hundred and ninety shares Stock of the 
Bank United States, - - - gl, 957,700 

In the Office at Baltimore, ... 1,540,000 



83,497,700 
The Committee have examined the instruments and other acts 
by which the shares, pledged at the Bank in Philadelphia, are pledg- 
ed, and find that there are 3,500 shares standing on the books of 
the bank, in the name of the Cashier of the bank, in trust to secure 
the loans which have been granted on them, and the certificates 
for the remaining 1 4,790 shares are in the the hands of the Cash- 
ier, with the customary powers to transfer 13,290 shares, part of 
the said 14,790 shares. But there is no power to transfer the re- 
maining 500 shares. It is not known whether the power to trans- 
fer these 500 shares has been lost or mislaid, or whether there was 
an original omission to take the same. The Cashier states that the 
want of this power was heretofore mentioned to Mr. J. W. M'Cul- 
loh in whose name they stand, who promised to execute a power, 
but had not done it. 

The Committee residing at Baltimore have brought from the 
Office at that place, certificates of 2,558 shares of Bank United 
States Stock, supposed to have been pledged at that Office, with 
powers of transfer which are regular, except that the power from 






108 

S, Smith & Buchanan, xvhich is a sealed instrument, is not execut- 
ed by both the said parties, but only by J. A. Buchanan for them, 
when it is perhaps necessary it should be executed by both. This 
power is to transfer 783 shares standing in the name of S. Smith 
& Buchanan. The shares thus transmitted from the Office at Bal- 
timore, added to those heretofore pledged at the bank in Philadel- 
phia, make 20,848 shares, which, according to the arrangement be- 
fore referred to, were to be pledged as a seeurity at the rate of 
SI 25 per share. To carry this part of the arrangement into effect, 
among the papers referred to the Committee are the following- 
notes : — 

1st. The joint note of Geo. Williams, S. Smith & Buch- 
anan and James W. M'Culloh, payable to the Bank, 
dated -May 1819, and payable 60 days after date for $325,650 
2nd. Geo. Williams's note, date 11th May 1819, at 60 
days, payable to S. Smith & Buchanan and endorsed 
by them and-J. W. M'Culloh for - - - 221,875 

3rd. S. Smith & Buchanan's note, dated 11th May 1819 
at 60 days, payable to George Williams and endors- 
ed by him and J. W. M'Culloh, for 97,875 



645,400 



To which add the amount of the notes discounted 

on stock at the Bank in Philadelphia - 1,957,700 



Which makes 82,603, 1 00 

Two millions six hundred and three thousand one hundred dol- 
lars, secured by the pledge of twenty thousand eight hundred and 
forty-eight shares, which is rather less than S125 per share. 

RECAPITULATION. 

The sum secured'by a pledge of stock - - §2,603,100 

The sum secured by a mortgage of Real Estate, &c. 

and personal security, - - - - - 900,000 



3,503,100 
The sum to be secured, according to the statement of 
• Messrs. S. Smith & Buchanan, George Williams and 
J. W. M'Culloh, handed to the Board at Philadelphia, 
is 3,497,700 



The apparent excess is S5,4Q0 



109 

If this excess should be real, it will then be necessary, finally 
to complete this arrangement, 

1. Either to correct the adjustment, by reducing one of the stock 
notes, or by giving the parties credit on some other account. 

2. To state an interest account on the notes heretofore given at 
the Office at Baltimore, which are substituted by the three notes 
herein particularly described, as among the papers referred to 
this Committee, and to make the necessary transfer of the ac- 
count from the Office at Baltimore to the Bank. 

3. To obtain a transfer of the shares in the Franklin Manufactur- 
ing Company of Maryland. 

4. To obtain a power from James W. M'Culloh, to transfer 500 

shares of the stock of the Bank United States, pledged as afore- 
said. 

5. To perfect the power of S. Smith & Buchanan to transfer 783 

shares stock Bank United States which is only executed by 
Mr. Buchanan. 

6. The completion of Mr. Lemuel Taylor's agreement. 

7. To have the mortgages recorded according to law. 

In fine, the Committee are of opinion, that the duties commit- 
ted to the gentlemen residing at Baltimore, have been executed 
with great labour and singular ability ; and that the*Bank is greatly 
indebted to them for their exertions. 

The Committee recommend the following Resolves : 
1. That it be the duty of the Cashier of the Bank to make an ac- 
tual statement of the accounts, report the same to the Board, 
and to make the necessary transfers to remove the account to the 
books of the bank. 
.2. That the gentlemen of the Board, residing at Baltimore, be re- 
quested to obtain a transfer of the shares in the Franklin Ma- 
nufacturing Company to the Bank, a power from Mr. James W. 
M'Culloh to transfer the 500 shares of the pledged stock for 
which no power exists, and to have the power of Messrs. S. 
Smith & Buchanan completed. 

3. That the stock now pledged to the Bank by Mr. Lemuel Tay- 
lor, be held subject to the agreement contained in his letters, 
and that that agreement be completed from time to time, as he 
shall pledge portions of remaining stock, agreeably to the tenor 
of his letters : and 

4. That when the powers of transfer of Messrs. S. Smith & Bucli- 
and J. W. M'Culloh shall be completed, the foregoing execu- 



110 

tion of the arrangement between Messrs. S. Smith & Buchanan* 
Geo. Williams and J. W. M'Culloh be deemed satisfactory and 
be final." 

"May 18, 1819. 
On motion, Ordered, That so much of the resolution passed at 
the last meeting, as makes it the duty of the cashier to transfer the 
account of S. Smith & Buchanan, George Williams and James 
W. M'Culloh, from the office at Baltimore to the Bank, be sus- 
pended. 

« October 5, 1819. 
The following Report was read and adopted, viz : 

The Committee on the Baltimore business, Report, 
That by the report of this committee, made on the 1 7th May last, 
and on that day confirmed by the Board, it appeared that the ag- 
gregate sum to be settled by the arrangement narrated in that re- 
port, was $3,497,700. Of this sum that report states, that the 
notes discounted at Philadelphia, amounted to $1,957,700. These 
notes were not changed, and now remain at the Bank, protested 
for non-payment The remainder of this sum was due at the office 
at Baltimore, vfz. $1,540,000. To secure this last mentioned sum, 
notes were held by the office (previous to the arrangement narrated 
in the report of the 17th May last) which still remain in the office 
at Baltimore, as this committee understands ; and that, under the 
arrangement aforesaid, the following notes were given in lieu 
thereof, viz : 
George Williams, $300,000 and $221,875— §521,875 00 



4 days interest, 


347 91 


§522,222 91 


S. Smith & Buchanan, 






George Williams, and 






James W. M'Culloh, 


325,650 00 




4 days interest, 


217 10 


325,867 10 


S. Smith & Buch. §97,875 and §300,000- 


-§397,875 00 




4 days interest, 


$65 25 


398,140 25 


J. W. M'Culloh, 


300,000 00 




4 days interest, 


200 00 


300,200 00 




§1,546,430 26 



which notes so substituted now remain in the office at Baltimore, 
under protest, for non-payment. 



Ill 

The substituted notes appear to exceed the original notes by 
g5,400, and it was proposed by the report of the 17th May last, if 
this excess should be found to lje correct, either to correct the ad- 
justment by reducing one of the notes, or by giving the parties 
credit on some other account. It appears, however, that the sub- 
stituted notes are so dated, as to leave 4 days interest uncovered, 
(as per the above statement,) which amounts to SI, 030 26, and 
leaves an excess (supposing the excess to be real, which the office 
at Baltimore must determine,) of only $1,369 74. 

These notes of 8 1,545 ,400, were secured as a part of the ag- 
gregate sum of 83,497,700, to the amount of 8900,000, by the seve- 
ral collateral securities, recited in the report of 17th May last to 
that amount, and, as a part of the same aggregate amount, by 
20,848 shares of stock Bank U. States, also particularly stated in, 
that report ; the certificates and instruments of hypothecation for 
the whole of which stock, are deposited at the Bank in Philadel- 
phia. 

The notes, together with some of the other documents given as 
a collateral security, of which a schedule is annexed to this report, 
are now deposited at the Bank, the rest are at the office at Balti- 
more. The report of the 17th May last, contemplates the transfer 
of the portion of the aggregate debt thus arranged, which was due 
to the office at Baltimore, to the Bank at Philadelphia, and the 
cashier of the Bank was directed to make the transfer accordingly. 
So much, however, of this report as provided for this transfer, was,, 
on the 1 8th May last (the next day) suspended. 

The committee, after due deliberation, are now of opinion, that 
the debt due to the office at Baltimore, ought not to be transferred 
to the Bank. The notes are payable, as well as those held as a col- 
lateral security, in Baltimore; the parties reside in Baltimore; 
and the property mortgaged for their payment, is situate at Balti- 
more. In short, the whole transaction naturally rests, and must es- 
sentially remain there ; and therefore it would only create embar- 
rassments to transfer the account. But, to separate it from the or- 
dinary and current business of the office, the committee recom- 
mend, that in the weekly and other abstracts of the office at Balti- 
more, this debt be put down in a distinct line, as the debt due by 
S. Smith & Buchanan George Williams and J. W. M'Culloh, or 
in some other way, expressive of the identity of it. And they re- 
commend, that the notes and other documents connected with the 
collateral securities, which are now deposited at the Bank, (except 



lis 



the pledged stock) be transmitted to the. office at Baltimore, and 
put under the control and management of that office. And they 
recommend, that an examination *e had by that office, into the ac- 
curacy of the excess of the amount of the substituted notes afore- 
said, stated in the report of the 17 th May last, and that the neces- 
sary corrections, if any, be made at that office. ■ 

They further recommend, that the original notes be delivered 
iip immediately to the parties." 

John White, the cashier, was then called again, and examined 
on this point. He proved that S. Smith & Buchanan would, in a 
few days, have paid on account of their part of the $900,000, the 
sum of $240,000, and that the, remaining $60,000 was satisfacto- 
rily secured: That in his capacity of Trustee he had sold the pro- 
perty mortgaged by George Williams, but had not yet adjusted the 
accounts : That probably about 830,000 or $40,000 would be re- 
alized from these sales ; That the farm mortgaged by James W, 
M'Culloh, had not been sold ; and that of the endorsers of the pro- 
missory notes given by him, three only were solvent, and they dis- 
puted the payment of their notes, which were in suit : That Isaac 
Edmondson, indeed, one of the solvent securities, had, before his 
death, paid his notes, amounting to $12,500, in order to stop inte- 
rest ; but they were paid on the express condition, that the amount 
should be refunded, in case the Bank should fail in the suits : and 
that he understood the calculation of the Board of the Parent 
Bank to be, that of the $900,000 nominally secured, as had already 
been stated, from about $400,000 to $500,000 would be ultimately 
realized. 

General Harper then stated, that he would offer evidence on the 
part of the prosecution to prove, that at the time when these opera- 
tions of the Traversers, with the funds of the Bank, under the name 
of stock loans, were undertaken, the house of S. Smith & Buchanan, 
whatever might be its real stability, possessed a very high degree 
of credit, and the reputation of great wealth ; and that George 
Williams was in opulent circumstances ; while James W. M'Cul- 
loh, the other associate, was known to be wholly without property. 
From these facts, if proved, taken in connexion with the official 
situation of M'Culloh, very important inferences in relation to the 
objects and motives of the Traversers, in these transactions, would 
be drawn. 

General Winder, on the part of the Traversers, admitted the 
facts, which were accordingly stated in evidence. 



113 

It was then stated by the counsel, and admitted on the part of 
the Traversers, that they had all applied for, and obtained, the be- 
nefit of the insolvent law, and their discharges under it, since this 
indictment was found. 

And here the evidence was closed on the part of the state.* 

Wednesday, March 26, 1823. 

GENERAL WINDER for the Traversers. 

He admitted that the conduct of the Traversers was indiscreet j 
that they relied too strongly upon the hopes and calculations in 
which the whole community indulged ; but the failure of their stock 
speculations was rather to be pitied as a misfortune, than con- 
demned as a crime. Those who were now the most eager in pro- 
secuting his clients, were, in 1817, the first to praise the course of 
conduct for which they were indicted : and those who now be- 
lieved them guilty of a conspiracy to defraud, were then their most 
strenuous supporters. It was his (Gen. W's) intention to show, 
that the several charges contained in the indictment were contra- 
dicted, by the positive testimony of the most respectable witnesses. 
His clients were charged, 

1 st. As beino- combined together- 

2d. To obtain and embezzle money belonging to the office of 
Discount and Deposit in Baltimore, without the knowledge of the 
Board. 

3d. For the purpose of enjoying the use of the same two 
months, without paying any interest or discount ; and 

4th. Without securing repayment. 

To sum up all, it was contended, that the sole object of the Tra- 
versers was, to cheat the Bank out of the interest of their money. 

In order to contradict these allegations, it would be shown, 
that the whole amount of stock discounts (81,540,000,) was con- 
tinued by formal entries of discounts in all the books of the Bank: 
That it was, or ought to have been known to the directors, that 
such discounts were made, and that the directors generally, availed 

* The Attorney General gave particular evidence, under this indictment, 
of the overdrawing^ of James A. Buchanan, and the concealment of them by- 
James W. M'Culloh from the Board of Directors ; which he at first relied on 
to support the general count : but as he afterwards withdrew this evidence 
from the present case, and adduced it under the second indictment, wher§ 
it will be fully stated, it is omitted here. 

16 



114 

themselves of such private discounts, by the president and cashier, 
It would be shown, that the origin of these stock speculations was, 
the desire of securing a debt from the Mechanics' Bank of Balti- 
more, to the office of Discount and Deposit ; for which purpose 
three several purchases were made from Dennis A. Smith, by 
which he was enabled to pay a large sum due to the Mechanics' 
Bank, which in its turn paid the same amount into the office : That 
a secret committee was appointed by the Board of the office, to 
meet one from the Mechanics' Bank; at a meeting of which com- 
mittee, the situation of the latter bank was developed, and the U. S. 
Bank secured apparently against loss, by the purchases of stock 
from Dennis A. Smith : That the profits on the first two purchases 
amounted to about $500,000, and that the third was made for D. 
A. Smith, and its profits secured to him : That the alteration made 
in the books, by transferring a large sum from stock loans to bills re- 
ceivable, was occasioned by the secret committee, on account of the 
importance of concealing the state of the Mechanics' Bank from the 
Parent Bank in Philadelphia, and also to save D. A. Smith's credit 
there: That until the 11th of August, 1817, the whole amount of 
bills receivable, and stock discounts, was included in one line ; 
after that date, two lines were used, and any alteration in the 
usual mode of proceeding, as the increase of bills receivable, and 
diminution of stock list, was rather calculated to excite inquiry, 
than to serve the purposes of concealment. 

It would be shown, that at this time, through the application of 
the cashier, (James W. M'Culloh,) a committee was appointed to 
examine into the state of the office of Discount and Deposit, which 
was only prevented from doing so, by the absence of one, and the 
sickness of another of its members. 

That at the several meetings of the Board of Directors in Balti- 
more, the different books showing the discounts, and the state of 
the bank, were always placed so as to invite inspection : That after 
protesting, by letter, without success, against the curtailing order of 
the Parent Board, bearing date the 19th February, 1819, it was 
agreed to renew the notes without the formality of discount, in or- 
der not to violate the instructions of curtailment : 

That the president and cashier represented to the Board in Bal- 
timore the necessity of remonstrance, arising from the debt of the 
Mechanics' Bank, and that the journey made by them to Philadel- 
phia, for the purposes of explanation, was approved by the Direc- 
tors: 



115 

That verbal explanations from the statement x y were given to 
the Parent Board, by whom the subject was referred to a commit- 
tee, which reported on the 30th March : That it was then referred 
to a committee of the Baltimore directors, viz : John Oliver, Geo. 
Hoffman, and John M'Kim : That this committee reported on the 
10th of April, when the subject was again referred, and the report 
of the last committee on the 17th May adopted: That all these re- 
ports state the amount of the stock debt at the settlement to have 
been, 

George Williams, - - - - §169,833 34 

James W. M'CuIloh, - - - 571,864 89 

James A. Buchanan, - 798,301 77 



gl, 340,000 00 



That this settlement includes the notes of £251,250, 8325,000, 
and §318,350 in amount, though not in form : That the statement 
a?, exhibits the sums of §25 1,280, §325,000, and §318,350, as ad- 
vances on stock above par, hypothecated elsewhere than in Balti- 
more, and not on personal security : That the statement x was ex- 
hibited to the Parent Board, with the pay list of March, 1819, and 
showed without a doubt, that no concealment was designed ; since 
it explained the character of these notes : 

That in the last report of 1 7th May, 1 819, it was admitted, that 
the statement x was submitted with the pay list, and that the 
Board unanimously confirmed the report and statement of the com- 
mittee. 

2. He (Gen. W.) said, that with regard to the §645,400 stock 
notes, to meet which, it was alledged there were only 34 shares, it 
would be proved ; 

By the report of the 17th May, that 2,558 shares were trans- 
ferred from Baltimore to Philadelphia on the 14th May at 125 per 
cent, which, together with 13,026 shares 25 per cent above par, or 
pledged at par only in the Parent Bank, amounted to §645,400 for 
the general loan on stock in Baltimore and Philadelphia above par 5 
and that the report of the 17th May recognises the hypothecation 
of the stock, for the advance in Baltimore. 

3. That the Board did see and know, the progress of the stock 
discounts : That the offering book of stock discounts was before 
them : That among the offers for discount on stock, by the Board 
of the office, were 



Friday, 1 1 July, 1819, W. Patterson & Sons, $U ,000 

15 do. John Donnel, 

22 do. Hughes, 

29 do. C Deshon, 

1 Aug. 1819, Donnel & N. Williams, 
8 do. C. Deshon, - - $30,000 

and that on the 8th of August, 817, the Board thought it more ad- 
visable to refer the propriety of discounting on pledges of stock, as 
executive business, to the executive officers of the Bank : That af- 
ter this change in the usual course, there was a line in the statement 
book, exhibiting at a glance, the conduct of the officers ; and if any 
attempt had been made to defraud, this book would at once have 
disclosed it to the directors : 

That in the Discount Ledgers, or Credit Books, the distinction 
between stock discounts and those on personal security, always ex- 
isted ; although in the statement book, no difference was made until 
August the 1 1th, 1817 : That the discount offers, registered in the 
same book with the other offerings, but in a different place, showed 
to the Board the executive discounts in detail, and thus prevented 
fraud on the part of the officers : That the aggregate amount of 
stock, and the aggregate amount of bills, were added up in the same 
place in the offering book ; whereas, in the statement book, there 
was only the aggregate of both : and that all the notes in question 
were as regularly entered, and with as much publicity, as any other 
notes or bills ever discounted ; so that, in fine, the directors might 
see the state of the Bank, whenever interest, duty, or curiosity, led 
them to inquire and examine. 

To convince the honorable court that there was ample security 
for the repayment of the loans made by the Traversers, he (Gene- 
ral VV.) would show, that they possessed 47,398 shares, of the value 
of S1j900,000, while their notes endorsed on the 2d of November, 
1818, only amounted to §1,540,000; and this, he declared, would 
be a conclusive refutation of the averment, that the loans were made 
without security, as no one disputed such a deposit being made in 
the Bank. 

Gen. Winder stated his intention of relying in his defence of 
the Traversers, upon the following articles in the Rules and Regu- 
lations for the government of the Office of Discount and Deposit. 

" Art. 5. It shall be the duty of the Cashier, carefully to ob- 
serve the conduct of all persons employed under him, and report 
to the Board such instances of neglect, incapacity, or bad conduct 



117 

as he may discover in any of them ; daily to examine the settle- 
ment of the cash account of the Office ; take charge of the cash, and 
whenever the actual amount disagrees with the balance of the cash 
account, report the same to the President and Directors without 
delay ; to attend all meetings of the Board ; keep a fair and regu- 
lar record of its proceedings ; give such information to the Board 
as may be required ; consult with Committees when requested, on 
subjects referred by the Board; and also to perform such other ser- 
vices as may be required of him by the Board." 

" Art. 1 6. On each application for Discount, every Director who 
may be present, shall be held to give his opinion for or against the 
same. And no Discount shall be made without the consent of 
three fourths of the Directors present ; and all notes and bills dis- 
counted shall be entered in a book, to be called The Credit Book, 
in such manner as to discover to the Board, at one view, on each. 
Discount day, the amount which any person is discounter, or is in- 
debted to the Office, either as payer or as endorser." 

"Art. 21. A Committee on the state of the Office, shall be ap- 
pointed by ballot every three months, to examine and count the dis- 
counted notes, and compare the amount thereof with the balance of 
the amount of bills discounted in the general leger ; they shall also 
count the cash, and examine the evidences of the other property of 
the Bank, and make an inventory of the same to be compared with 
the books in order to ascertain their agreement, and make report 
to the Board." 

"Art. 31. The Directors of the Offices shall be empowered to 
form and establish all other Rules and Regulations for the interior 
management of the Offices ; Provided, the same be not repugnant 
to law, or to the Rules and Regulations of the Bank of the United 
States, or the Resolutions of the Directors thereof." 

Thursday, March 27, 1 823. 

Having stated the grounds of defence on which he meant to 
rely, General Winder now proceeded to examine the witnesses on 
the part of the Traversers, who were then called and sworn. 

General Winder here offered in evidence and read a resolution 
of the Parent Board, requiring the office at Baltimore to reduce 
the balances due to it, dated April 8th, 1817. 

" Bank of the United States, April 8th, 1817. 

" Resolved, That the President be authorized to instruct the 
Board of Directors of the Office of Discount and Deposit at Balti- 



118 

more, to require of the banks of that city, a speedy reduction of 
the balances which have accumulated against them, since the ori- 
ginal transfer of the public money from those banks to the Bank of 
the United States. 

Extract from the minutes, 

(Signed) J ON A. SMITH, Cashier." 

Mr. Thos. Finley, being first examined on the part of the Tra- 
versers, stated, that he was a Director of the Office of Discount and 
Deposit in Baltimore in the year 1817, at which time the balance 
due from the Mechanics' Bank became as much as $800,000. That 
there was a meeting of the Directors on the subject at the house 
of James A. Buchanan, when a Committee, consisting of the Pre- 
sident, Messrs. Taylor and Colt, to be aided by the Cashier, was 
appointed to meet a committee from the Mechanics' Bank. 

There w r as a verbal report made by the Committee, that mea- 
sures were taking which would probably accomplish the object in 
view, but that further facilities would be wanting. The Commit- 
tee did not make a detailed report, deeming it not prudent to dis- 
close the situation of the Mechanics' Bank. That in March 1819, 
Mr. Buchanan in speaking of the pay list, which he held in his hand 
at the time, mentioned to the board, that the occasion of making 
the purchases from D. A. Smith, was to facilitate the arrangement 
with the Mechanics' Bank, and to secure the debt from it to the 
Office of Discount and Deposit, which would be done by enabling 
D. A. Smith to pay the Mechanics' Bank. 

That J. A. Buchanan also said, that he was going to Philadel- 
phia with the pay list, and would be accompanied by Geo. Williams 
and J. W. M'Culloh, to make the same explanations to the Parent 
Board, which he had made in Baltimore ; and also, if it was thought 
necessary, to give further security for the loans that they had ob- 
tained. 

The witness also stated, that Mr. Colt was present at this time, 
and said, that if the Office was even to lose the whole line of 
§600,000, it would be a gainer by the services these gentlemen had 
rendered. That he (the witness) does not know what was meant 
by the " line of g600,000 : » 

That Mr. Taylor, who was a member of the Board, and present 
at the time, made but few remarks, but concurred in what had been 
said by Mr. Colt: That the pay list was upon the table for a short 



119 

time : he believed that Mr. Colt lookedat it, but did not examine it 
particularly ; and that Mr. Taylor also looked at it: 

That the discount book and statement book were always on the 
table, when the directors met : That it was the general custom to 
look at the statement book, but not usual to examine the offering 
book ; because a memorandum of the amount of notes offered, and 
of receipts, was always furnished, and the notes themselves always 
examined : That the credit books were laid upon one corner of the 
table, open to the inspection of any director. 

The witness also stated it to be his impression, that a note of 
S. Smith & Buchanan for $540,000, without any endorser, was 
brought before the Board, and discounted by it, as a note secured 
by a pledge of stock. 

On being cross examined, the witness stated, 

That he thought Mr. Buchanan referred to all the purchases 
from Dennis A. Smith, as being made with a view to benefit the 
Branch Bank : He did not recollect, that it was then stated at the 
Board by J. A. Buchanan, or at any other time, or was known at all, 
that more than 125 per cent had been taken. Heard something of 
more from one of the parties, but does not recollect which of them, 
nor at what precise time : That at the meetings of the Board, the 
cashier took the offering book before him, and if he was absent, one 
of the directors officiated in his place. Mr. A. A. Williams and 
Mr. L. Taylor, acted for some time : That there was no resolution 
made by the Board, authorising the president and cashier to dis- 
count on stock. Such discounts were at first made by the Board... 
and afterwards there was a general understanding, although no re- 
solution by the Board, that the president and cashier might dis- 
count to par value on stock, as that was deemed sufficient secu- 
rity. Mr. Finley also stated, that he recollected some conversa- 
tion at the Board, about that time, to this effect; that stock was 
always worth par, and it was desirable to grant loans on it, which it 
would be best for the president and cashier to make ; and that the 
executive officers, however, appeared to consider themselves au- 
thorised to make discounts to a larger amount, and the Board were 
willing that they should do so : That Amos A. Williams stated in 
his place at the Board, that he was informed by his brother George 
Williams, then a director in the Bank of the United States, who 
had recently returned from Philadelphia, that the Parent Bank 
was not only willing, but desirous, that loans of 8125 per share 
should be made on stock : That in the winter, Dec. and January 



120 

1818 — 19, he understood, from public report that they hacf gone 
above g 125 ; but official information to that effect, was never given 
to the Board : That sometime in the same winter, Mr. M'Culloh 
told him, (the witness) that as soon as the arrangements then going 
on in Philadelphia were completed, the whole matter would be 
brought before the Board in Baltimore. That he (the witness) had 
also some .conversation with George Williams, when the latter ask- 
ed him, whether any paper with his (Williams's) name on it, had 
been discounted without the knowledge of the Board ; adding that 
if such were the fact, it was contrary to his wishes and intentions. 

That in Nov. 1818, the Cashier (J. W. M'C.) asked for a com- 
mittee under the bye laws to examine into the state of the Bank. 
Such a committee was appointed, consisting of R. L. Colt, L. Tay- 
lor and Geo. Hoffman. That there had never been more than two 
committees, one in 1817 and the other in 1818; the first of which 
only reported ; its object being to see whether the transfer of spe- 
cie and funded debt of the United States had been fully made. 

Mr. N. F. Williams gave in evidence, that he was a Director 
of the Office of Discount and Deposit in March 1819, in the early 
part of which month, the President (Jas. A. Buchanan) took up the 
pay list at a meeting of the board, and stated, that by the direction 
of the Parent Board, a list had been prepared at the Office in Bal- 
timore, showing the amount of loans, to whom they were made, and 
upon what security.. 

That for the security of the loans made to J. W. M'Culloh Geo. 
Williams and himself, they owned, besides other property, a large 
amount of shares of the Bank of the United States, pledged chief- 
ly at par to others : (i. e. to other persons or other institutions) ; — ■ 
That they had become purchasers of this stock, either the whole or 
a considerable part, (witness did not recollect which) to assist Den- 
nis A. Smith in settling his affairs with the Mechanics' Bank, and 
to enable that Bank to liquidate its debt to the Office of Discount 
and Deposit : That the debt due the Office of the Bank of the 
United States by the Mechanics' Bank had been very large and 
the situation of that bank very perilous ; and that in order to pre- 
serve it, a committee had been appointed to meet one from the bank, 
to adjust matters according to their discretion. That he, (Mr. 
Buchanan) accompanied by George Williams and J. W. M'Cul- 
loh would proceed to Philadelphia, and make the same explanations 
there which had been made in Baltimore, and endeavor to arrange 
matters in such a way, that the Office of Discount and Deposit 



1S1 

would be relieved from the operation of the order for the curtail- 
ment of loans on stock. He (Mr. Buchanan) then observed, that 
as stock had fallen considerably below what it was when they be- 
came borrowers, the Parent Board might perhaps deem further se- 
curity necessary ; and if they did, the parties would be on the spot 
and able to judge of the practicability of giving it. 

That some conversation then took place in an under tone be- 
tween James A. Buchanan and those near him, by which the wit- 
ness received the first information of the embarrassment of the 
Mechanics' Bank— Mr. Buchanan said they had several painful 
meetings at his house, and often remained late upon business.— 
That Mr. Colt sat next the president at the meeting in which the 
above conversation took place, having the pay list in his hand.— 
After looking over one or two pages he remarked, that he also was 
a member of the committee to meet one on the part of the Me- 
chanics' Bank ; and that in addition to what had been said by Mr. 
Buchanan, he would beg leave to remark, that guch was his opinion 
of their services and the merit of their undertakings (alluding 
to the purchases of stock) that if the office should lose the whole 
line or sum of $600,000, an event which he did not apprehend, 
still it would be a gainer by their operations. Witness did not 
know what was meant by the whole line. 

That Mr. Taylor then said, he entirely concurred in the senti- 
ments of Mr. Colt, and in the correctness of the statement made 
by the president. 

That he (witness) never knew of any discount above 1 25 ; nor 
did he ever hear the rate of stock, discounted in the purchases 
from D. A. Smith, stated by Mr. Buchanan. 

Amos A. Williams gave in evidence, that he had been director 
for two years after the organization of the Bank. That in April 
1817, the Mechanics' Bank was indebted about $800,000 to the 
Office of Discount and Deposit ; and that there was a balance more 
or less against all the State Banks : That the debt of the Mecha- 
nics' Bank gave rise to much anxiety in Baltimore and Philadel- 
phia, and a committee was appointed by the Board of Directors to 
meet one from the Mechanics' Bank. That he (the witness) soon 
after perceived an important change in the item against the Me- 
chanics' Bank ; and on enquiring how the settlement had been ef- 
fected, was informed by either Mr. Colt or Mr. Taylor, that they 
were enjoined secrecy, but that the committee were perfectly sa- 
tisfied with what had taken place, 

17 



122 

At a subsequent period he met one of these gentlemen, and on 
again questioning him as to the settlement with the Mechanics' 
Bank, was told that he must ask no questions, as the whole affair 
Xvas confidential. 

That Mr. Taylor told him, (the witness) that after he had left 
the Bank in November 181 8, large discounts were made above 125 ; 
of which fact I). A. Smith had informed Mr. Donnel when going 
to Philadelphia in the steam boat. 

That Mr. Colt had said, he thought himself a fool for not taking 
a part in the purchases from Smith, but that he had been afraid of 
the risk. This remark was after the last purchase from Smith 
and after the appointment of the committee. The board had risen, 
and Mr. Colt, Mr. A. A. Williams and James A. Buchanan were 
conversing together. 

Mr. Meredith gave in evidence, that A. Brown, P. E. Thomas, 
C. Mayer and himself composed the committee appointed by the 
Directors of the Mechanics' Bank to meet one from the Office of 
Discount and Deposit : That D. A. Smith failed in the beginning 
of April, 1817, when the Mechanics' Bank owed the office 8 or 
8900,000 : That the first meeting of the committee with the one 
from the Office of Discount and Deposit was at the house of James 
A. Buchanan; the witness, A.Brown and Col. Mosher, attending 
on the part of the Mechanics' Bank, and James A. Buchanan, Le- 
muel Taylor, R. L. Colt and J. W M'Culloh on the part of the of- 
fice. A full statement of the affairs of the Mechanics' Bank was 
then given, and its Books exhibited to the committee from the of- 
fice, under a promise of secrecy. A fter this statement, the next 
object to be taken into consideration, was the relief of the Me- 
chanic's Bank ; and to this end it was agreed, that the office should 
grant facilities to enable it to support its credit, viz: in part, by 
discounting a large amount of bills receivable which had been 
transferred to the Mechanics' Bank by Dennis A. Smith. Other 
measures were afterwards suggested by James A. Buchanan and J, 
W. M'Culloh, the purport of which the witness did not recollect. 
This agreement was made at the first meeting of the committee, 
At the second meeting, when only James A. Buchanan and J. W. 
Culloh attended from the office; and the witness and A. Brown 
from the Bank ; the adjustment of the accounts of D. A. Smith 
was the principal business. Some difference of opinion existing 
between the witness and A. Brown with respect to the interest, 
P. E. Thomas was sent for, and the whole account was settled, viz 
considered as paid. 



123 

That the amount of Bills receivable transferred to the office 
was about §400,000, the whole debt being about $800,000, which 
balance was not adjusted until after December 1817. That it was 
proposed by J. W M'Culloh, that the Mechanics' Bank should 
borrow six per. cent, stock, which might be sent to Boston for sale, 
and the proceeds paid to the Office of Discount and Deposit in Bills 
of Exchange. This was proposed in a private conservation with 
Mr. M'Culloh before the first meeting, and might have been men- 
tioned afterwards, but was never assented to. 

The witness further said, that the balance due by the Mechan- 
ics Bank was believed to have been settled from the proceeds of 
the sales by D. A. Smith to James A. Buchanan, M'Culloh and 
"Williams : That the settlement went on progressively as Dennis A. 
Smith was able to obtain funds : That in December, 1817, sales of 
stock had been made in Philadelphia at, from 150 a 154 ; viz. 1000 
shares at 150, by William Sansom, and 400 shares at 154 by W. 
S. Wieland. 

General Winder here referred to, and read the proceedings of 
the Parent Board in Philadelphia on the 30th March, 1819. — Mr. 
Meredith continued : The last meeting between the two committees 
was in December, 1817, and was for the sole purpose of arranging 
the account of D. A. Smith with the Bank. There never were more 
than two meetings. 

Mr. D A. Smith gave in evidence, that the last 1 2,000 shares, 
sold to Buchanan and M'Culloh in December, 1817, were of con- 
tracts held by witness from various persons, and yielded him a pro- 
tit of §55,000: That S. Smith & Buchanan, James W. M'Culloh 
and G. Williams released to him a mortgage which they held upon 
the Calverton Estate of §40,000 and which he afterwards assigned 
to the Mechanics' Bank: That this release, however, made no part 
of the stipulations in the sale of 12,000 shares. 

Mr. Alexander Brown gave in evidence, that there never was 
but one meeting of the committees from the Mechanics Bank and the 
Office of Disount and Deposit ; at which meeting the concern was 
finally arranged. This was in April, 1817, when it was agreed, 
that the Mechanics' Bank should transfer to the office a large amount 
of bills receivable, (about §250,000) assigned by D. A. Smith to the 
bank; and also Col. Mosher's notes for about §300,000, and that 
for the balance, (which did not exceed the usual accommodation to 
city banks) the office gave them credit on paying the common in- 
terest. That the bills receivable, including Mosher's notes (which 



i£4 ' 

were either primary or collateral security,) were immediately band- 
ed over to the Office of Discount and Deposit to be discounted by 
it. Dennis A. Smith had also assigned to the Mechanics' Bank 
other good notes, but which as they were at a longer date than it 
was customary to discount, the office refused to receive. On be- 
ing cross examined he stated, that he did not know the exact amount 
of the debt of D. A. Smith to the Mechanics' Bank, but considered 
it as secure after these notes to the amount of $400,000, were as _ 
signed to it. 

That witness, Jonathan Meredith and Phil. E. Thomas were 
appointed by the Mechanics' Bank, and James A. Buchanan and 
James W. M'Culloh by D. A. Smith, to settle the account between 
the latter and the Mechanics' Bank : That the only disagreement 
was about the amount of interest, which however was finally com- 
promised in December, 1817. 

Re (the witness) recollected no remark of Philip E. Thomas 
about the facilities given to Dennis A. Smith, in the settlement of 
his account with the Mechanics' Bank, by the sale of his shares to 
the office of Discount and Deposit. The Mechanics' Bank did not 
continue to pay interest to the office longer than the other city 
banks. The witness further stated, that the arrangement of April 
1817, was effected by showing a correct statement of the affairs of 
the Mechanics' Bank to the committee from the office of Discount 
and Deposit, including the assignment of notes to the amount of 
$400,000 from D, A. Smith, which it was supposed would cover 
his debt: That in December, 1817, the credit of the Mechanics' 
Bank was very good, and no pressure was expected from the office, 
nor from any other quarter that would place the Bank in danger. 
General Winder here offered in evidence the Ledger Book, 
28th April, 1817, where it appeared, that notes of Col. Mosher to 
the amount of $300,000, had been discounted at the office of Dis- 
count and Deposit ; which notes the witness stated to have been 
collateral security, for notes assigned by the Mechanics' Bank to 
the office. Mr. Brown then proceeded to say, that the amount of 
Dennis A. Smith's debt in December, 1817, was about $300,000, 
which was paid, in part, by the assignment of 4,000 shares, after 
paying the amount for which they were pledged. 

Dennis A. Smith, in continuation, stated, that his debt to the 
Mechanics' Bank was paid in the following manner ; 



125 








Profits on stock transactions with J. A. Buchanan, 




J. W. M 'Cull oh, and George Williams, 


855,006 


Calverton estate, 


90,000 


Notes discounted by Mr. Oliver, - 


50,000 


Kimmels' and other notes, about - 


105,000 




8300,000 



Mr. Meredith, in continuation, stated, that at the first meeting 
of the committees from the Mechanics' Bank and the office of Dis- 
count and Deposit, the situation of the former was not ascertained, 
but its solvency was supposed to be materially affected by the state 
of Dennis A. Smith's affairs : That it was considered important to 
keep the whole affair secret ; and it was suggested, that the bills re- 
ceivable should be collected by the Mechanics' Bank, and not by 
the office, in order to preserve the credit of the Mechanics' Bank ; 
this suggestion, however, was not adopted. That he (the witness) 
did not recollect having stated to the committee the amount of 
D. A. Smith's debt to the Mechanics' Bank ; he supposed it, how- 
ever, to amount to near 81,200,000, of which he thought he had in- 
formed, at least, James A. Buchanan and Philip E. Thomas : That 
after the balance of discounts had been reduced with the office of 
Discount and Deposit, public confidence was fully restored. 

Mr. Dennis A. Smith, on being again called, stated, that he was 
confident his debt to the Mechanics' Bank did not exceed 7 or 
8800,000, and it was created solely by the responsibilities of the 
Mechanics' Bank for Mm. 

Mr. Meredith then stated to the court, that having refreshed his 
recollection, he was convinced he had been mistaken in supposing 
the debt of Mr. Smith to have amounted to 81,20u,000. 

Mr. Brown then continued with his evidence. At the first 
meeting of the committees, it was not supposed that Mr. Smith's 
debt exceeded 8500,000, for which security to the amount of 
8400,000 was given. That afterwards, it was discovered that 
there were liabilities on the part of the Bank for Mr. S. in other 
places, to the amount of 4 or 8500,000 in addition. This, however, 
was not suspected at the first meeting, and was afterwards secured 
to the satisfaction of the Mechanics' Bank by Mr. Smith. 

General Winder then offered in evidence the discount book of 
the office of Discount and Deposit, by which it appeared^ 



126 

That Col. Mosher's note was renewed 1st July, 1817, for 
S180,000, reducing the debt of the Mechanics' Bank by 8120,000. 
This note fell due on the 30th August, 18 IT, and on the 2d of Sep- 
tember was renewed for $1 00,000. On the 3d of N ovember, it was 
renewed for SI 8 165 55; on the 22d of November, 1817, there 
was a discount of %\29,318 ; and on the 6th January, 1818, a dis^- 
count for §49,216 67. 

Mr. R. L. Colt gave in evidence : That he was present at the 
meeting of the committees from the Mechanics' Bank and the 
office of Discount and Deposit, at James A. Buchanan's house; 
when, from the examination of its affairs, he was perfectly satisfied 
of its solvency with regard to all its creditors, excepting stock- 
holders. He at the same time proposed, that some of the bills of 
the Mechanics' Bank should be transferred to the office, which was 
agreed to : That in his report to the Board of the office, he stated, 
that the debt was safe; and on being asked further, by some direc- 
tors, had declared he could not enter into the particulars. He re- 
commended that the notes of the Mechanics' Bank should be re- 
ceived, and that the office of Discount and Deposit should discount 
those which had been assigned to it. 

Friday, March 28, 1823. 

James Cox, cashier of the Bank of Baltimore, gave in evidence. 
That at a meeting of committees from the several Banks of Balti- 
more and Philadelphia, held in Philadelphia, early in 1817, it was 
agreed to resume specie payments. That some time after the esta- 
blishment of the office of Discount and Deposit, the local Banks ge- 
nerally became indebted to it : That soon after the resumption of 
specie payments, the United States Bank agreed to give certain 
credits to the different State Banks on the payment of interest. 
The accounts between the Banks and the office of Discount and 
Deposit, were struck weekly. AIL the city Banks did not discon- 
tinue the interest account with the office of Discount and Deposit 
at one period, but from time to time as their situation enabled 
them to do so. 

Jas. L. Hawkins, Cashier of the Franklin Bank stated in evi- 
dence, that towards the end of 1816, efforts were made to induce 
the State Banks to resume specie payments. The 1st of July was 
fixed upon; but this not being satisfactory to all the parties, a com- 
mittee consisting of J. H. Nicholson, Samuel Hollinsworth and 
Henry Payson, was appointed to proceed to Philadelphia and make 



127 

some arrangement with the Directors of the United States' Bank. 
It was there agreed that specie payments should be resumed from 
February 1817: Provided, that the United States' Bank should 
not, before the first of July following, require specie payments, on 
receiving the interest on the balances due to it. The same ar- 
rangement was made with regard to the payment of interest be- 
tween the several State Banks up to the 1st July 1817 ; when it 
was believed, that the interest accounts generally ceased, with the 
exception, as the witness heard, of the Mechanics' Bank. 

Mr. Thomas Finley being again examined, stated, that about 
the month May 1817, the members of the board and the public gen- 
erally felt and expressed a strong desire that the commercial cre- 
dit of Dennis A. Smith should be sustained; and with this view the 
board granted him a discount of about $200,000, which it was un- 
derstood would enable him to resume his payments. 

General Winder then proceeded to read in evidence a letter 
from L. Cheves, President of the Parent Board, to S. Smith & Buch- 
anan, bearing date May 14th, 1819, approving the final arrange- 
ments which had then been made by the Committee from Balti- 
more. He also read a statement of the value of the stock which 
had been purchased by the Traversers, and the letter of R. L. Colt, 
dated in May 1818, stating the price in London to be 132 10s» 
($140), and that it was expected to rise in August to $155. 

Mr. Jona. Meredith further stated in evidence, that soon after 
the failure of D. A. Smith, he, together with Phillip E. Thomas was 
sent by the Mechanics' Bank to negotiate with the Bank of Penn- 
sylvania. When in Philadelphia, he, (the witnesss) was informed 
by Mr. Thomas, that the sensation created by Dennis A. Smith's 
failure was such as to render it imprudent to begin any negotiation. 
Dennis A. Smith also stated, that the last sale which he had made 
to the Traversers produced to him near $55,000, which, together 
with the subsequent voluntary release of a mortgage on the Calver- 
ton estate, made about $95,000. The witness further said, that it 
would have been difficult for him to have sold an equal amount of 
stock to any person except the Traversers ; and he was told by one 
of them (J. W. M'Cuiloh) that if any profits should arise from the 
last sale, they should be made over to him. The release of the 
mortgage on Calverton was no part of the bargain for 12,000 shares, 
but was subsequently made by J. A Buchanan, under the impres- 
sion that the purchase would be profitable. 

By the books of the Office of Discount and Deposit which were 
produced by General Winder in evidence, it appeared that the fol- 



128 



lowing was the situation of the debt from the Mechanics' Bank to 
the Office, from the 3rd of November to the 1st Dec. 1817. 
November 3, 1817, $49,065 11 

5, 11,419 75 

10, 9,535 11 

13, 12,000 

17, 8,000 

20, 15,000 

24, 6,665 

27, 14,000 

December 1, 9,547 14, 

and from an inspection of the accounts of the Commercial and Far- 
mers' Bank, City Bank, and Mechanics' Bank for November and 
December 1817, it appeared, that the Mechanics' Bank was not 
more indebted to the Office of Discount and Deposit than the other 
banks generally. 

Mr. Hennis A. Smith then continued to state in evidence, that 
4,000 shares, a part of the 12,000 which had been sold to Buchanan 
Geo. Williams and J. W. M'Culloh were, prior to the sale, hypo- 
thecated with A. Brown & Sons, and a loan of g60,000 made to 
him upon it by discounting S. Smith & Buchanan's note. The sale 
of the 12,000 shares subsequently made, relieved the stock from 
this as well as other liens, and realised the additional profit of 
$55,000, so that the whole profits made by the witness 
amounted to- - - - - - - - $60,000 

55,000 



$115,000 
The first item, $60,000 being gained before the sale to the Tra- 
versers, and the second afterwards, as his means of paying the 
$£0,000 were not effected by the sale of the 12,000 shares which 
only produced $55,000. 

The evidence for the Traversers then closed. 



JVote — The foregoing statement of the evidence on behalf of the Traver- 
sers, the previous opening of Genera] "Winder, and his subsequent argument, 
were presented to that gentleman for revision, after they had been framed 
from the notes of the several counsel for the prosecution. The pressure of 
business, however, during the sitting of the court in Baltimore, and his hav- 
ing- to attend the court of Appeals, would prevent him, he said, from paying 
any attention to the subject. All the papers in the cause having been re- 
turned by General Winder to those from whom he received them ; the let- 
letter of L. Chevesto S. Smith & Buchanan, bearing date May '4th 1819, and 
It. L. Colt's letter of May 1818, could not be obtained for insertion, 



±29 

The Attorney General then proceeded to adduce evidence iu 
reply. It would be remarked, lie said, that the defence seemed to 
be rested chiefly on two points : a supposed authority from the 
Branch Board, to the Traversers Buchanan and M'Culloh, to make 
loans on pledges of stock ; and a wish and intention on the part of 
the Traversers, to save the Branch Bank from loss and the Me- 
chanics' Bank from ruin, by making large purchases of stock from 
D. A. Smith, so as to enable him to pay his heavy debt to the Me- 
chanics' Bank ; by which that Bank was in its turn to be enabled 
to sustain its own credit, and pay its debt to the Branch. He 
would direct his evidence in reply, he said, to these two points : 
and first to that of authority. 

The first witness examined on this point, was George Hoffman. 
He swore that he was a director of the Baltimore Branch from De- 
cember 1816, to November 1818 : That during this time no power 
was given to the President and Cashier, by the Branch Board, to 
discount notes on stock : That as it was then understood, that all 
stock loans were granted on regular pledges of stock, at par, it 
was not considered as material that the Board should know the 
names of the borrowers ; the effective security consisting in the 
stork, and not in their notes ; and that he had always understood 
that the resolution of August 26, 1817, authorizing loans on stock 
at 25 per cent above par, was confined to the Parent Board, and re- 
mained in existence no more than eleven days. 

John M'Kim, jun. was next examined. Me proved, that while 
he was a director of the Baltimore Branch, that is, from November 
1816 to early in 1819, he never knew or heard, that the Board gave 
power to the President and Cashier to make discounts on stock . 
but he thought there was no risk in making them on pledges of 
stock, at par ; and it never entered into his head to look at those 
made at the Branch, for which he supposed that stock at par was 
actually pledged and deposited : That he never understood, that any 
stock loans had been made at the Branch above par, till an order 
came from the Parent Board to curtail : and that the Parent Board 
itself discounted on stock at 25 per cent above par only about ele- 
ven days. 

Roswell L. Colt was next examined. He stated, that while he 
was a member of the Baltimore Board, from November 26, 1.816, to 
November 26, 1819, no power was given by that Board to the Presi- 
dent and Cashier to discount on stock : That he knew they exer- 
cised such a power, but always supposed, and had been given to un* 
18 



ISO 

derstand, that it was derived from the Parent Board : That he sup- 
posed this power to be limited to cases, where stock at par was re- 
gularly pledged, to the full amount of the loan ; and never under- 
stood, except from report out of doors, that such loans were made 
at the Baltimore Branch, above par : That he was present at the 
Branch Board, in March, 1818, when the pay list was produced, 
and James A. Buchanan, the President, stated that large loans had 
been made on stock, which it was necessary for him, Buchanan, to 
go to Philadelphia and explain ; but that Buchanan did not state 
that those loans were above par. 

James Beatty was also called, and swore that while he was a 
director of the Baltimore Branch, that is, from 27th November, 
1817, to 27th November, 1820, he never heard of any power being 
given by that Board to the President and Cashier, to discount on 
pledges of stock : That he always supposed the power to be de- 
rived from the Parent Board ; and had once received from the 
Cashier a discount himself, on a pledge of stock ; but it was at par. 

The Attorney General observed, that he would next proceed to 
the second branch of his reply ; which related to the alledged ob- 
ject of the Traversers in making their extensive purchases of stock 
from Mr. D. A. Smith ; purchases which they represented as the 
cause of the stock loans in question. 

On this subject, the first witness examined was John White, 
the present Cashier of the Branch Bank, of which he was a direc- 
tor in March, 1819, when the communication spoken of by the wit- 
nesses for the Traversers, was made to the Board by James A, 
Buchanan. 

He stated that he was present at a meeting of the Board, in 
March, 1 819, when James A. Buchanan holding in his hands a paper 
which he stated to be a pay list, made out in .pursuance of an order 
from the Parent Bank, went on to observe, that he, J. W. M'Culloh 
and George Williams, had obtained large loans on stock, to an ex- 
cess of about $800,000 ; but whether above the par value of their 
stock, or above its amount at 8 125 the share, he does not certainly 
recollect : That he thinks however, it was above the amount at 125, 
or 25 per cent advance: That he sat at a distance from Mr. Bu- 
chanan, at the opposite end of the table, and did not hear very dis- 
tinctly what he said, or attend to it very particularly : That Mr. 
Buchanan represented the object of these loans to be, a laudable 
effort upon his part and that of M'Culloh and Williams, to sustain 
the credit of the Mechanics' Bank, and of the city; and that some 



131 

&F the directors present appeared to be satisfied from these repre? 
sen tat ions, that the effort was laudable. 

Mr. White added, that until the occasion in question, he had 
known nothing in particular about stock loans, or the rate at which 
they were granted ; having always supposed it to be executive bu- 
siness, confided to the President and Cashier, by the Parent Board. 
James Beatty was also examined on this subject. He stated, 
that he was present at the Branch Board in Baltimore, in March, 
1819, when the President, James A. Buchanan, having the pay list 
in his hand, observed to the Board, that himself and James W. 
M'Culloh, were going with it to Philadelphia: That Mr. Buchanan 
added something about the order for curtailments from the Parent 
Board, and also stated in substance, that the large loans on stock 
which he and the other Traversers had obtained at the Baltimore 
Branch, were for extensive purchases of stock which they had made 
fr >m Dennis A.. Smith, to enable him to pay a debt of gbOO,000, 
which he owed to the Mechanics' Bank, and thus to secure a large 
debt which that Bank owed to the Branch : But the subject being 
entirely new to him, and delivered with great rapidity, he did not 
understand it then, nor can he give a precise account of what 
passed : That he heard no observation on the subject from Mr. 
Colt, who was one of the Directors present ; and that the Board 
broke up immediately after this communication. 

George Hoffman was next examined. He proved, that in March, 
1819, James A. Buchanan called on him at his counting house; and 
addressing him, as he supposes, in his character of a director of the 
Parent Board, said, " you may have observed, that our house, (the 
house of S. Smith & Buchanan,) has not borrowed largely of the 
office, (the office of Discount and Deposit in Baltimore,) on per- 
sonal security, but we have been compelled to do so on stock. The 
Mechanics' Bank was largely indebted to the office, and a wish to 
secure this debt, induced us to make our own larger." This, the 
witness said, was the substance of the communication; but he 
could not answer for the precise expressions. 

John Hoffman was also examined on this point. He stated, 
that he was one of the directors of the Branch Bank, who were 
present at the meeting of the Board in March, 1819, when the pay 
list for the Parent Board was produced : That he stood next to 
Mr. Colt, at the time when James A. Buchanan, the President, af- 
ter the ordinary business of the Board was over, stated, that in 
compliance with the order of the Parent Board, a pay list had been 



13£ 

inade, with which he was going to Philadelphia : That he said some* 
thing in vague and general terms, about the connexion of this pay 
list with the affairs of the Mechanics 9 Bank, and purchases from 
Dennis A. Smith, which the witness did not then understand, "and 
which," he added, " I do not now understand " That Mr. Colt 
had not the pay list in his hands : That Mr Buchanan said very 
little, and that what he did say was in very vague terms — -nothing 
particular : That, as he thinks, very little was said by any body ; 
and he does not recollect that any thing was said on the subject by 
Mr. Colt, and that the Board separated almost immediately after 
the subject was first mentioned. 

Roswell L. Colt being also examined on this point, stated, that 
he was present at the Branch Board of Baltimore in March, 1819, 
when James A. Buchanan, after speaking of the pay list which he 
held in his hand, alluded to the purchases which he and his asso- 
ciates, James W. M'Culloh and George Williams, had made from 
Dennis A. Smith, to save the Mechanics' Bank, and enable it to 
pay its debt to the Branch : That it was this circumstance, and the 
sight which he accidentally got of the three large notes at the bot- 
tom of the pay list, that first excited his suspicions, and induced 
him to mention the subject to Mr. M'Kim, then about to set out for 
Philadelphia, and subsequently to go there himself, and make a 
communication concerning it to the Parent Board : and that Mr. 
Buchanan's allusion to the Mechanics' Bank, and the purchases 
from Dennis A. Smith, was in very vague and general terms, em- 
bracing no particulars, or detailed explanations. 

Being asked by one of the defendant's counsel, whether he did 
not make some observations, approving Buchanan's measures ? 

He replied that when he heard the observations of Mr. Buch- 
anan, which were in general terms, and before he saw the large 
notes on the pay list, he might perhaps, although he did not recol- 
lect it, have expressed the opinion which at that moment he certain- 
ly entertained ; which was that by these purchases Smith had been 
enabled to secure his debt to the Mechanics' Bank, and the Me- 
chanics' Bank to make large payments to the Branch : But if he 
made this remark, which he did not recollect, it was under the im- 
pression that the statement made by Buchanan was true, and that 
the means by which the purchases had been effected were correct. 

As to the remark about the whole line of $600,000, which had 
been ascribed to him by some of the witnesses, and of which he had 
no recollection, it was impossible he apprehended that he could 



183 

have made it in those terms ; because there was no line of 8600,000 
as the books proved. 

Mr. Colt further stated in answer to a question on the part of 
the prosecution, that he was a member of the Committee appointed 
in November 1818 by the Branch Board, to examine the state of 
the Branch, and that Lemuel Taylor was also a member. That 
he often asked the members to meet which they always omitted, 
sometimes he presumes from one cause and sometimes from ano- 
ther; such as indisposition or absence: That he was at length 
obliged to leave Baltimore on business, and was absent two months : 
That three months only were allowed for making the report, which 
was never made : and that the business of the Committee was mere- 
ly to count the cash and notes on hand, and see whether they a- 
greed with the statements in the books. 

The Attorney General then showed from the books of the Bal- 
timore Branch, which were produced and proved, the state oi its 
claim against the Mechanics' Bank, during the period in question. 

From this evidence it appeared, that from March 31st 
1817, to May 1st, in the same year, this debt fluctuated 
from -------- 8522,877 64 

Its amount on the first of those days, to 782,706 75 

At which it stood on the last; and that on the 5th of 

May, 1817, it amounted to - 646,535 68 

12th of June 512,968 14 

16 179,681 31 

19 ------ 121,483 74 

and on the 23rd, 106,374 70 

after which it never rose much above the last sum. 

This reduction, he said, would appear to have been the effect 
of the measures adopted on the 24th of April 1817. 

He would now proceed to shew what had been, at the time, the 
opinion of the Traversers themselves, as to the effect of those mea- 
sures, and the situation of the Mechanics' Bank and Dennis A. 
Smith immediately after their adoption. For this purpose he pro- 
duced proved and gave in evidence the following letters; one of 
April 25th 1817, from James A. Buchanan to William Jones, Pre- 
sident of the Parent Bank, another of June 23rd 1817; from James 
W. M'Culloh, to Jonathan Smith Cashier of the same Bank, and a 
third from James A. Buchanan of October 31st 1817, to the same 
person. 



134 

*' Office of Discount and Deposit, Baltimore April 25th \S\T, 
Sir, 

The extensive concerns of Mr. D. A. Smith, and his close 
connexion with the Mechanics' Bank of Baltimore, induced the Di- 
rectors of that institution, on hearing that Mr. Smith's affairs were 
in an embarrassed state, to appoint a Committee from their Board, 
with power to attend to the immediate interest of the Bank, and to 
prevent any injurious impression which might grow out of the con- 
nexion and state of embarrassment. The Committee consists of 
James Mosher, President, and Alexander Brown and Jonathan Me- 
redith, Dif ectors, and it was one of their first acts, to ask a consul- 
tation with this institution. A Committee from this Board was 
accordingly appointed, consisting of the President, and R. L. Colt 
and Lemuel Taylor, Directors, and we met the deputation from the 
Mechanics' Bank last evening. A full, free, and unreserved inter- 
change of opinion took place, the result of which is, a satisfactory 
conviction to our minds, that the Mechanics' Bank can sustain no 
loss from Mr. Smith. The Committee from that Bank, will conti- 
nue to give unremitted attention to its concerns, and we entertain 
no apprehension for its safety or reputation. 

The magnitude of the debt due to this office, next engaged the 
attention of the two Committees, and measures are in train, which 
will produce to us, this day, a payment of four hundred thousand 
dollars ; which through the medium of funded debt, will be made 
a cash payment to us in Boston at the expense, if any, of the Me- 
chanics' Bank. 

Mr. Smith indulges the hope that he can go on with his pay- 
ments. He is not yet under protest, and I am disposed myself to 
jbelieve, that it may be avoided. I have not time to add more than 
assurances of the respect with which, 
1 am, Sir, 

Your obedient servant, 

J. A. BUCHANAN, Pres. 
WILLIAM JONES, ESQ. 

President of the Bank of the United States, Philadelphia." 

" Office Discount and Deposit, Baltimore, 23rd Jan, 1817. 
Dear Sir, 

I had the pleasure to address you on the subject of 
exchange a few days since, and again on the subject of retaining the 
funded debt for the Bank by arranging an agency to buy it, &c. this 



135 

last was addressed jointly to yourself and the President. I then 
intended to have soon visited Philadelphia for a day or two, but 
have been prevented, and shall not do so now for a month or two. 
Not having had the pleasure of hearing from either of you, and not 
intending soon to visit your city, I avail of the present moment to 
say what on one topic I meant to have done when with you per- 
sonally. 

The Mechanics' Bank made an arrangement to pay its debt to 
this Office, by a sale of sterling, and 6 per cents at Boston, the 
sterling has been all sold, the debt partly sold ; a wish on the part 
of that bank to appear less indebted induced me to charge the Of- 
fice at Boston to the Mechanics' Bank here for all the sterling and 
debt sent by it for sale, although about §240,000 of the debt is yet 
unsold. In addition to the above account of debt, which although 
ordered to be sold at current prices at Boston, may yet remaia 
chieflj^unsold for ten or more days, for it sells very slow at Bos-. 
ton ; in addition to that account of stock I believe I could buy on 
1st July about half a million of the banks here, and probably as 
much of individuals from time to time, should the bank make the 
arrangement I have proposed to you, and I think it could be had 
at 2 to 3 premium in all the next quarter. 

T imagine that you might rely on this point for about one and a 
half million. 

I feel it a duty to give these views to assist you in your deci- 
sion, and should you decide to buy and deliver at par, if you do 
not succeed in getting it at a trifling sacrifice, why then you have 
only to do what you otherwise must, that is, deliver your own. 
Sincerely yours, 

JAMES W. M'CULLOH, Cashier, 
JONA. SMITH, Esq. Cashier." 

"[private and confidential.] 
" Office Discount and Deposit, Baltimore, Oct. 31st, 1817, 
JONATHAN SMITH, Esq. 
Dear Sir, 

I have asked and obtained the permission of Mr. 
M'Culloh to reply to your letter of the 29th inst — It is proper that 
I do so, because the inquiry which you make, grows out of an ar- 
rangement between a Confidential Committee of the Mechanics' 
Bank, and one of this institution ; of which latter I was chairman. 
At the time that Mr. D. A. Smith first hesitated in his payments. 



136 

the Mechanics' Bank owed to this institution a very large sum of 
money, and the connexion between Mr. Smith and that bank had 
been so close, as to make me believe it to be my duty, without a 
moment's delay, but with the utmost circumspection, to ascertain 
whether we were in danger of any and what loss. A Committee 
was appointed to meet a Committee from the Mechanics' Bank, and 
the first joint measure was, an agreement that our proceedings 
should be secret, and not even communicated to our respective 
boards. 

It now appeared to our Committee, that if we would lend our 
aid to the Mechanics' Bank, every thing desirable for our safety, or 
connected with the reputation of that institution, could be easily 
accomplished. It was agreed, then, but a knowledge of this agree- 
ment is strictly confined to the committee, that purchases of funded 
debt and bills of exchange should be made for account of the Me- 
chanics' Bank, and be transmitted by ours for sale, to those places 
where we wanted funds. All risk, whether of insolvency, or loss, 
and all profit, if any, was to be for the Mechanics' Bank ; but, in 
truth, there was no risk from the quality of the bills, for none were 
touched but such as were of unquestionable character. In this 
way, we have gone discreetly on, and have reduced the very heavy 
debt due us to almost nothing. We have done more. Our ac- 
count with Boston and Mew-York has been considerably relieved, 
and the Mechanics' Bank is of unimpaired credit, having accom- 
plished this desirable end without other loss than that of interest. 

I make this communication to you, sir, unreservedly, but in 
strict confidence. You may therefrom, however, be enabled to sa- 
tisfy your Board, without subjecting me to the charge of an. impro- 
per disclosure. If a letter be required from hence to be submit- 
ted to your Board, I will thank you, from the knowledge which is 
now afforded, to say what will be satisfactory. 
With great respect, 
I am, dear sir, 

Your obedient servant, 

J. A. BUCHANAN, Pres't. 

Dennis A. Smith was then called, on the part of the state, and 
examined more particularly in relation to his sales of stock to the 
Traversers. 

Having in the mean time refreshed his memory, by reference to 
papers and memorandums in his possession, he gave the following 
statement of those sales. 



137 

The first sale was in April, 1817, and consisted 

April* 1817. of two parcels, one of 2,000 shares, at 19 per 

cent adv. and one of 5,404 shares, at 20 pev 

cent. — 

7,404 shares. 

Those shares were chiefly pledged in State Banks at 
par, aud were redeemed by the purchasers ; who merely 
paid him the difference between the amount of the 
pledge, and that of the purchase money. This difference 
constituted his profit, and amounted to - - §146,080 00 
The second sale was in June, 1817, 

June, 1817. and consisted of 12,536 shares, at an 
advance of 36 per cent, this advance 
amounted to the sum of §45 1,296 ^00 

But as part of the shares were incum- 
bered to the amount of 104,719 00 



That sum was to be deducted from the 

gross advance, and left him a profit of §346,577 00 

which was paid, in part, by taking up a note of his for 

§161,214 67, which had previously been discounted for 

him at the Baltimore Branch. 

The third and last sale was in De- 
December, 1817. cember, 1817, and embraced 12,000 
shares at 55 per cent advance, with 
the advantage to the purchasers of receiving the divi- 
dend. But the various charges amounted to about as 
much as the dividend, and left the price to them nearly 
the same. These 12,000 shares depended chiefly on con- 
tracts with various persons, to transfer the shares to him 
or his order, on paying the stipulated prices. These and 
other incumbrances the purchasers were bound to re- 
lieve, and to pay him only the difference between their 
respective amounts, and the purchase rate of §155 per 
share ; which difference constituted his profit on the sale 
to them, and amounted on the whole 12,000 shares, to 

§55,000 00 
But he had previously obtained an advance 
from other persons, on a part of these 
shares, over and above the price which he 
had contracted to pay for them. This was 
19 



138 

one of the incumbrances which the pur- 
chasers were to remove, by an application 
of a part of the purchase money. It con- 
stituted a further profit to him on these 
shares, and was finally realized by the sale 
in question. The amount was - 860,000 00 



making for his whole gain on the 12,000 

shares, the sum of $1 15,000 00 

Mr. Smith further proved, that his stoppage of payment took 
place on or about the 9th of April, 1817: That very soon after- 
wards, and before he made any sales of stock to the Traversers, 
James W. M'Culloh called on him, and offered on the part of James 
A. Buchanan, to receive as a pledge or counter security, all the 
stock which he then had, being the above mentioned 7,404 shares, 
and to give him S. Smith & Buchanan's notes or endorsements, to 
such an amount as the pledge would justify, for the purpose of ena- 
bling him to resume his payments : That he expressed his thankful- 
ness for this offer, but declined to accept it; observing to Mr. 
M'Culloh that he would much prefer selling the shares, at what 
might be deemed a fair price : and that in consequence, as he sup- 
posed, of this suggestion, the first purchase of 7,404 shares was 
made ; which yielded him, as already stated, a profit of g55,000. 

He further stated, that at the time when he made the second 
sale, that of 12,536 shares in June, 1817, he held no others, nor any 
contracts for any others; but immediately or soon afterwards pro- 
ceeded to make new contracts for stock, in the belief that it would 
still rise ; and thus possessed himself of the 12,000 shares, or rather 
of the contracts for them, which formed the subject of the third sale : 
That when he made the first and second sales, he was fully con- 
vinced, that the stock would greatly rise, and might, as the event 
proved, have realized a large fortune, had he retained his shares 
some time longer ; but he was anxious to pay his debts and settle 
his concerns, which were various and extensive, and which he had 
not then the same means as formerly of managing to advantage : 
That when he stopped payment, his debts amounted to upwards of 
g5,000,000, of the whole of which he effected the settlement, by the 
property which he held, and the resources derived from these specu- 
lations in Bank stock ; which would have yielded him a very large 
surplus, had he held the stock longer; but he preferred making an 
immediate adjustment of his affairs. 



139 

The Attorney General here closed the evidence in reply. He 
then remarked, that testimony had already been adduced to shew, 
that up to the 1 1th of August, 1817, inclusive of that day, loans on 
stock had always passed, like those on personal security, before the 
Board of Directors ; and that on the 12th of that month, this branch 
of the business had been transferred, in the manner already ex- 
plained by the evidence, to the President and Cashier. He would 
now shew the change in the state and character of stock loans 
which followed this transfer of power, and how that change was ef- 
fected. 

He then produced the books of the Baltimore Branch, which be- 
ing referred to, shewed : 

That on the 7th of August, 1817, the loans on stock 
amounted to - - - - - - - 8216,002 50 



On the 1 1th of the same month, the day preceding the 
change, to - - 314,850 00 

And on the 14 th of the same month, the first state- 
ment day after the change, to ... 857,350 00 

Making an increase from the 12th to the 14th, of 8532,500 00 
On the 12th of August, 1817, as had already appear- 
ed, there was discounted for S. Smith & Buchanan, a note 
without any endorser, on an alledged pledge of stock 
which never existed, for - 8540,000 00 



More than the increase, hj 7,500 00 

Thus it appeared that 87,500 had been paid by some 
other borrowers on stock, while these persons, by their 
loan to themselves, without any security whatever, but 
under the pretence of solid security, that of stock, in- 
creased the whole amount - 8532,500 00 

It further appeared by the books, that on the 22d of 
August, 1817, there was discounted for S. Smith & Bu- 
chanan, a note endorsed by George Williams, on an al- 
ledged pledge of stock, which did not exist, for - 215,000 00 

On the 30th of the same month, one endorsed by 
Hollins & M'Blair, with a pledge of the same descrip- 
tion, for 280,000 00 

On the 5th of September, 1817, one endorsed by 
George Williams, on a similar pledge, for - - 165,000 00 

And on the I Oth of the same month, one with the 
same endorser, and the same sort of pledge, for - . 39,500 00 



140 

Making a total, for these four notes, of - $699,500 00 

and amounting, with the discount of August 12th, 1817, 
of - -'...- - . . 540,000 00 



To the sum of 81,239,500 00 

which these persons had loaned to themselves, in the 
short period of twenty-eight days, on pretence of effec- 
tive pledges of stock, but in fact without any other se- 
curity than their notes. 

It further appeared by the books, that on the 28th of 
August, 1817, the whole amount ef stock loans was gl,238,950 00 
Of which the loans obtained by them, before that day, viz. 

on August 12th, - - - - 8540,000 

andon22ddo. - 215,000 



Made up more than one half, or - 755,000 00 



And that on the 8th of September, the total amount 

was g2,401,117 33 

of which they had the above sum of - - 1,239,500 00 

still more than one hal£ 

• It was thus, the Attorney General said, that the Traversers 
Buchanan and M'Culloh exercised the power over stock loans, 
with which they had vested themselves, on the 12th of August, 
1817, under pretence of an authority from the Parent Board, the 
existence of which no attempt had been made to prove. 

He also gave in evidence and re*a to the Court, the 22d and 
31st articles of the Rules and Regulations for the government of 
the Offices of Discount and Deposit, or Branch Banks, which are as 
follows : 

"Art. 22. The Presidents and Cashiers of Offices, shall take, 
and subscribe an oath, or affirmation to the following effect, to wit : 
I do swear (or affirm) that I will, to the best of my know- 

ledge and abilities, perform the duties assigned to, and the trust re- 
posed in me as of the Office of Discount and Deposit of 
the Bank of the United States. 

" Art. 30. The Directors of the Offices shall be empowered to 
form and establish all other Rules and Regulations for the interior 
management of the Offices ; Provided, the same be not repugnant 
to law, or to the Rules and Regulations of the Bank of the United 
States, or the Resolutions of the Directors thereof. 

He then called John Donnell, and examined him on the part of 
the state. He proved that he was a Director of the Parent Bank 



141 

in 1817, and understood from report, but not from seeing the reso- 
lution, that discounts on stock at g 125 to the share, or 25 per cent 
above par, were at one time authorised; but that he also understood 
by report, that the resolution giving the authority was soon re- 
scinded : and that he never was present at the Parent Board 9 when 
any discount at a higher rate than par was made. 

Thomas B» Rutter, the clerk employed in making out stock 
lists, was then called again by the Attorney General, and exa- 
mined as to the length of time that was necessary for making such 
a list. 

He proved, that if there was no error in the books, a stock list 
might be prepared in two or three hours ; and that in case of errors 
in the books, he supposed it might require two days, but never 
more. 

The Attorney General stated that the object of this proof was 
to shew, that the delay till November 14th, 1818, in forwarding the 
stock list, required by the resolution of the Parent Board of Oc- 
tober 20th, 1818, twenty four days, was studied and fraudulent. 

He also again called and examined William L. Gill a clerk in 
the Branch Bank, who proved that since Mr. White the present 
Cashier came into office, he had been employed to make out Pay 
Lists, or lists of Discounts on personal security, for the Parent 
Board ; and that the time required for this purpose was from eight 
to fifteen days, according to circumstances. 

James Beatty one of the members, and the sole surviving mem- 
ber, of the Committee appointed on the removal of James W. 
M'Culloh on May 20th, 1819, to examine the state of* the Balti- 
more Branch, and deliver over the books papers and effects to the 
new Cashier, was then called by the Attorney General, and ex- 
amined as to the state of the cash when this change took place. 
He proved that on the 20th of May 1819, there was a deficiency 
in the Cash of .... $154,518 42 

of which M'Culloh replaced in the Bank 
on the 31st of May, - - - g70,000 

and on the 3rd of June, - - - 231 25 

: 870,231 25 



leaving a final deficiency of - 84,287 17 

and that to cover this deficiency, he delivered to the Committee 
various notes and securities, enumerated and described in a paper 
which the witness held in his hand, and which he proved and pre- 
sented to the court. It is as follows : 



148 




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143 

It appears the Attorney General said, that some of these notes- 
had since been paid, and they were so marked in the List The 
rest were still due. 

He here closed the evidence for the prosecution. 

General Winder then offered the following additional testimo- 
ny for the Traversers, viz. 

A letter from J. W. M'Culloh to the Cashier of the United 
States Bank in reply to the curtailing order of the 19th of Februa- 
ry, 1819, and remonstrating against it. 

" Office of Discount and Deposit, Baltimore, Feb, 1819. 
JONA. SMITH, Esq. Cashier, 

Dear Sir, 
The several resolutions of the Board of Directors of the 
Bank of the United States under date of have been pre- 

sented to the Directors of this Office for their observance. And 
they have instructed me to say, that they will endeavour to meet 
the wishes of the Parent Board in the reductions ordered, as lite- 
rally as their duty to the institution will allow, having reference 
only, to its safety. 

The aggregate amount of the reductions shall be effected as 
soon as may be practicable, and if possible precisely as directed. 
The amount reduced at this Office during the last six months is 
large, for our city. 

But, as this is certainly a debtor city, the pressure created by 
a curtailment of the loans of this Office upon our Merchants is 
doubly great, because the State Banks must follow the example, 
and make equal reductions, which necessarily renders it more dif- 
ficult to accomplish the views of the Board without serious injury 
to its debtors. 

The reduction now ordered would in better times be felt. To 
make it with safety to commercial credit, under present circum- 
stances, after so recent and such a considerable abstraction of ca- 
pital, will require the greatest circumspection. 

In the reductions upon the stock they will also have to exercise 
a sound discretion. 

Many of the Stockholders are merchants, and in their other en- 
gagements must in common with others feel the pressure of the 
times. Some are considerable stockholders, and became such at 
high prices under peculiar circumstances ; to sever these from this 



144 

property at a time when every fiscal executive and politico 
cumstance that could tend to reduce its value is in full force u 
operation, might and would inflict irreparable injury on man), 
without benefit to the Institution, and in fact without accomplishing 
the intended object. 

They are satisfied that every possible exertion will be made 
by the Stockholders to meet this call, and when this shall have been 
done without success, the Directors will feel not only disposed 
but obliged, to suspend a demand that cannot be complied with, 
persuaded that it is neither the wish or intention of the Directors 
of the Bank United States, to proceed under such circumstances 
to rigorous extremities against such Stockholders. 
Truly your's, 
Signed, J. W. M'CULLOH, Cashier." 

General Winder also called the attention of the Court to J. W. 
M'Culloh's note of January 15, 1818, for £56,303 22, and stated 
that the interest on it was included in the general consolidation of 
November 2, 1818. 

In relation to the letter from James A. Buchanan to Jonathan 
Smith, concerning the payment of part of the debt of the Mechanics 5 
Bank by bills of exchange on Boston, General Winder observed, 
that this payment was made by advancing funds to the Mechanics' 
Bank for the purchase of United States funded debt, to be depo- 
sited in Boston, and drawn on at the risk of the Mechanics' Bank, 
which was finally credited on the payment of the bills of exchange, 
and. provisionally credited ad interim with the bills. The only ad- 
vantage derived by the Office was about g 1,900, gained in exchange, 
paid to them by the Mechanics' Bank ; and turning the course of 
exchange in favor of Baltimore, by getting credit in Boston. The 
Office of Discount and Deposit gained also the interest on these 
loans. 



The following statement of the testimony of Mr. Amos A. Wil- 
liams and Mr. Meredith, furnished by themselves, came in after 
that part of the. Report which contains their testimony, was struck 
oft". It is subjoined, to prevent all possibility of mistake or misun- 
derstanding ; and will be seen to agree substantially with that pub- 
lished, from the notes of Mr. Mitchell and Mr. Murray. 






145 

Amos A. Williams gave in evidence, that he had been a direc- 
tor for two years after the organization of the Bank : That in April, 
1817, the Mechanics' Bank was indebted about §800,000 to the 
Office of Discount and Deposit ; and that there were balances due 
of more or less from all the State Banks : That the debt of the Me- 
chanics' Bank gave rise to much anxiety in the Board at Balti- 
more, and a committee was appointed therefrom to meet one from 
the Mechanics' Bank. That he, the witness, soon after perceived 
an important reduction in the item against the Mechanics' Bank; 
and on inquiring how it had been effected, was informed by either 
Mr. Colt or Mr. Taylor, who were both of the aforesaid committee, 
that they were enjoined, to secrecy ; but that the committee were 
perfectly satisfied with what had taken place. At a subsequent pe- 
riod he met one of these gentlemen, and on again questioning him 
as to the settlement with the Mechanics' Bank, was told, that he 
must ask no questions, as the whole affair was confidential. 

That on one occasion Mr. Taylor told him, the witness, that af- 
ter he had left the Bank in November, 1818, large discounts were 
made above 125 ; of which fact Dennis A.Smith had informed Mr. 
Donneli when going to Philadelphia in the steam -boat. 

That on another occasion Mr. Colt said, he thought himself a 
fool for not taking a part in the purchases from Smith, but that he 
was afraid of the risk. This remark was after the last purchase 
from Smith had been made, and after the appointment of the com- 
mittee above mentioned. The Board had risen, and Mr. J. A. Bu- 
chanan, Mr. Colt, and the witness, were conversing together on the 
subject of stock. 

Mr. Meredith gave in evidence, that he was a Director of the 
Mechanics' Bank of Baltimore in the spring of 1817, at the time 
Mr. Smith, then Cashier of that Bank, suspended his payments. 
That in consequence of that event, a meeting of the Directors was 
called ; at which a committee was appointed, authorised to arrange 
Mr. Smith's affairs with the Bank, and to adopt such measures ge- 
nerally, as the situation of the Bank might seem in their judgment 
to require. This committee consisted of Messrs. Brown, Thomas, 
Mayer, and the witness. 

That at the period of Mr. Smith's failure, the Mechanic's Bank 
was largely indebted to the Office of Discount and Deposit ; wit- 
ness thinks that the amount was between 8 and 8900,000. For the 
purpose of making some arrangement with respect to this debt, 
which was daily increasing, the committee of the Mechanics' Bank 
W 



146 

agreed to meet a committee on the part of the Office. A meeting was 
accordingly held at the dwelling house of Mr. J. A. Buchanan, at 
which Mr. Brown and the witness, with Col. Mosher, the President 
of the Mechanics* Bank, attended, and there met Messrs. Bu- 
chanan, Taylor,, Colt and M'Culloh, on the part of the Office. 

At this meeting, the actual situation of the Mechanics' Bank 
was the principal subject of inquiry. Mr. Brown and the witness 
frankly communicated all their information upon this subject, and 
exhibited the Statement Book of the Mechanics' Bank. This was 
done under solemn pledges of secrecy. After much conversation, 
it was agreed that the Office should grant such facilities as it was 
thought would enable the Mechanics' Bank to support its credit ; 
among which was the discount of a large amount of bills receivable* 
which had been transferred to the Mechanics' Bank by D. A. Smith. 
Other measures were suggested for the same object, but the witness 
does not now particularly recollect them* 

A meeting was subsequently held at the Mechanics' Bank, at 
which J. A. Buchanan and J. W. M'Culloh, A. Brown and the wit- 
ness, were present. The final adjustment of the accounts of D. A, 
Smith with the Mechanics-' Bank, was the principal object of this 
meeting. Some difference of opinion arose between the witness 
and Mr. Brown, relative to the charge of interest, in consequence 
of which P. E. Thomas was sent for, and the whole account was 
finally closed, that is, the principles of its adjustment were agreed 
upon. This meeting was in December 1817, and was the last. 

The amount of bills receivable transferred to Smith by the Me-- 
chanics' Bank, was about $400,000; these were discounted by the 
Office, and went to the credit of the Mechanics' Bank ; the balance 
of the debt due to the Office was reduced from time to time, but 
was not, as witness thinks, finally extinguished until after Decem- 
ber 1817. The reduction was gradual ; and was made, as the wit- 
ness believed, principally from the proceeds of sales of Bank stock 
by Smith to ? Buchanan, M'Culloh and Williams, handed over to the 
Mechanics' Bank by Smith in payment of his account. 

Among the suggestions for the relief of the Mechanics' Bank, 
Mr. M'Culloh proposed that that institution should borrow six per 
cents, and place them to the eastward for sale. This was suggest- 
ed to witness by M'Culloh, before the first meeting at Buchanan's* 
and was probably mentioned there, but witness does not recollect 
whether it was acted on. 



147 

In December 1817, the price of Bank shares at Philadelphia, 
was from 150 to $154. Witness knows of two sales made about 
that time in Philadelphia, 1,000 shares were sold by Wm. Sansom 
at SI 50 per share, and 400 by J. Whelan at SI 54. 

At the meeting of the two committees at Mr. Buchanan's, the 
actual situation of the Mechanics' Bank was a matter of doubt and 
conjecture ; it was impossible to ascertain it; apprehensions were 
* felt and expressed for its safety, particularly as its credit had been 
shaken by Smith's failure. It was considered important to pre- 
serve as much secrecy as possible, and with this view witness sug- 
gested the propriety of having the bills receivable, which had beea 
transferred to the Office, collected by the Mechanics' Bank; a 
measure, however, which was not adopted. 

The debt due by Smith to the Mechanics' Bank, at the time 
of his failure, amounted, as witness thinks, to about 81,200,000. 

The credit of the Mechanics' Bank continued to improve dur- 
ing the summer and fall of 1817, and at about the time of the extin- 
guishment of the debt due to the office, public confidence appeared 
to be restored. 

Mr. Meredith afterwards stated to the Court, that upon better 
recollection, he found that he had been mistaken as to the amount 
of Smith's debt to the Mechanics' Bank ; it must have been much 
less than the sum he had mentioned. 

He further stated, that very soon after the failure of Smith, he 
went to Philadelphia on behalf of the Mechanics' Bank, among 
other things to negotiate a business of great importance with the 
Bank of Pennsylvania. Mr. Philip E. Thomas had preceded him 
the day before, and was to join him in Philadelphia. When wit- 
ness arrived, he found that Mr. Thomas had returned to Baltimore, 
leaving a letter for witness, informing him of the sensation that Mr. 
Smith's failure had caused in Philadelphia, and the suspicions it 
had excited there, as to the credit of the Mechanics' Bank. 



148 
ATTORNEY GENERAL'S ARGUMENT. 

The evidence as well on the part of the State as of the Traversers 
having closed, the Attorney General in a summary manner re- 
capitulated to the Court the principal points on which he relied 
in support of the prosecution, drawing from them at the same 
time such deductions, as, in his opinion were just and reasona- 
ble. 

He stated, that he presumed it would not be denied, that if 
James W. M'Culloh alone, contrary to his duty, his oath, and the 
rules and regulations prescribed for his government, and without a 
colour or pretence of authority from the Board of Directors at Phi- 
ladelphia or at Baltimore, withdrew from its vaults the funds of the 
Branch of the Bank of the United States established at Baltimore, 
and appropriated the same to his own use ; and by various talse 
statements and indirect means concealed such his conduct, that he 
was guilty of a fraud upon the Bank of the United States; that he 
had detrauded them of a part of their property and effects; that he 
had injured them in their property : That if by combination and 
agreement between Buchanan and M'Culloh the same acts and out- 
rages are committed, that they are guilty of a conspiracy at com- 
mon law, for which they may be criminally prosecuted. The Court 
of Appeals of this state having in this cause determined, that any 
conspiracy falsely and fraudulently to injure another in his person, 
Ms property or his character, is an indictable offence. 

He then called the attention of the Court to the charter of the 
Bank of the United States, and likewise to the I2th, 13th, 14th, 
15th, 16th, 17th, 22d and 31st articles in the rules and regulations 
prescribed by the Parent Board at Philadelphia, and its various re- 
solutions passed for the government of the Branch at Baltimore, to 
shew the powers of the different Boards of Directors, and the offi- 
cers of the Parent and Branch Banks, and contended, that it was 
impossible that the Traversers could for a moment suppose, that a 
power to make discounts on stock notes was ever delegated to 
them after the 23d day of January 1817. The only authority vest- 
ing the making of discounts in the Presidents and Cashiers of the 
Branches of the United States Bank, is contained in the resolutions 
of the 18th and 27th of December, 1816, which, by express limita- 
tion expires on the 23d of Janu ry 1817. That the Traversers 
knew they had no power to make stock loans, was most manifest 
from their various letters, addressed to the President and Cashier 



149 

of the Bank of the United States, and their answers thereto be- 
tween the 24-th May and 25th July 1817, in answer to one of which 
letters the President of the Bank at Philadelphia informs the Pre- 
sident of the Branch at Baltimore, that not even the Branch Board 
of Directors at Baltimore are permitted to make stock loans of any 
magnitude. On the 25th of July 1817, this restriction was remov- 
ed, and by a resolution of the Parent Board, the office*, (that is, the 
the Boards of Directors) not the officers of the Branches at Balti- 
more, &c. were authorised to discount notes secured by a pledge 
of stock of the Bank, or of United States stock, at the par value 
thereof: and by a resolution of the 26th ol August following, such 
discounts were authorised on the stock of the Bank, rated at SI 25 
per share. These resolutions give no authority to the President 
and Cashier at Baltimore to make discounts on stock ; no evidence 
of such authority was left in the Office at Baltimore at the time of 
M'Culloh's removal from his station as Cashier; none can be found 
in the Minute Book of the Parent Board, (where it must appear if 
it ever existed) although most diligent search has been made for it 
by the Counsel on both sides of the prosecution ; none has been 
produced by the Traversers, they have not even attempted to offer 
one tittle of testimony, that they ever saw or heard of any proceed- 
ing of the Parent Board investing them with such power. This 
Court therefore are bound to believe it never existed. That the 
Board of Directors of the Branch at Baltimore ever gave such an 
authority, cannot be seriously pretended ; the contrary is proved 
by every Director of that Board who has been examined in Court, 
and that such Board had no right to transfer such power, was as well 
known to the Traversers as it is to this Court To question this, 
would be to do gross injustice to the very superior and distinguish- 
ed talents which the accused are universally known to possess. 
The fact that the book containing entries of all stock loans was laid 
before the Board of Directors at their semi-weekly meetings, when 
they might have examined it if they thought proper, appears to be 
relied on to shew that the Board at Baltimore knew and approved 
of these stock discounts, and sanctioned and adopted them as their 
own. But no such inference can be drawn from that fact; the 
proof of all the Directors is, that at the time of the discounts com- 
plained of, they understood and believed, that discounts on stock 
they had nothing to do with ; that it was executive business, o er 
which they had no controul. And this understanding and belief 
arose, not because they knew or thought that they had transferred 



150 

such power, but because, as is in proof by Mr. Colt and others of the 
Directors, that the members of the Board, whilst in session, were 
informed by the Traversers, or one of them, in the presence and 
hearing of the other, that discounts on stock was executive busi- 
ness, (committed exclusively to the Traversers) and with which 
the Directors of the Office had no more to do than with the affairs 
of the Union Bank of Maryland. That the book containing a state- 
ment of stock loans would have informed the Directors of the 
frauds practised by the Traversers is by no means true. It is true, 
it contained the names of all " discounters" on stock and the amount 
discounted, but it also contained the false, the fraudulent entries 
that such discounts were secured by stock properly pledged, when 
in truth, as respects the discounts which the Traversers granted to 
themselves no such pledges of stock were ever made. Upon proof 
like that now relied on, this Court will not for a moment counte- 
nance the unwarrantable imputation, attempted to be cast upon the 
highly honorable and distinguished merchants who composed the 
Board of Directors of the Office of Discount and Deposit during the 
years 181 7 and 1818, that they connived at the proceedings of the 
Traversers. 

That even to admit that the Board of Directors at Philadelphia 
or at Baltimore, or both of them, had delegated to the Traversers, 
the power to grant discounts on stock, it would rather magnify than 
diminish the enormity of their conduct. Upon what terms were 
such discounts to be made? upon stock being hypothecated in the 
manner prescribed by the resolutions and bye-laws regulating such 
discounts. There resolutions require that to be done, without 
which stock cannot be securely pledged as a collateral security for 
i\\e payment of a debt, namely, that the certificates of such stock 
shall be deposited by the borrower with the lender : if this be o- 
mitted the borrower might obtain a hundred loans upon the same 
stock, and the last pawner having possession of the certificates of 
stock, would be preferred to all others. These resolutions there- 
fore correctly require, that the certificates of all stock on which 
discounts are granted shall be lodged in the Bank with a certificate 
of hypothecation, and a power of attorney to sell and transfer the 
stock, upon failure to retire at maturity the note discounted. That 
if when clothed with such authority, under pretence of its execu- 
tion, in violation of their general duties, the performance of which 
were enjoined by the most solemn obligation, and in abuse of this 
high and important trust especially conferred on them, they have 



151 

drawn from the Bank upwards of 8 1,500,000 without pledging 
stock for one fourth part of that amount, can their criminality in 
the eye of the law — can their moral turpitude be less because this 
especial confidence was reposed in them ? That they have acted 
in this way, upon examining the testimony, no human mind can 
doubt. 

Until about the 8th or 10th of August 1817, notes on stock had 
been regularly submitted to the Board of Directors and discounted 
by them as all other notes were. From that time no such notes 
were discounted by the Board of Directors, but such discounts 
were made by the Traversers (being President and Cashier,) it be- 
ins: as alledged confided to them as executive business over which, 
the Board of Directors had no controul. About the 10th of Au- 
gust the Board ceased to make loans on stock ; at that time, the 
amount discounted on stock was $31 8,000 ; as large a sum as it 
had ever heretofore been. On the 14th of August, it suddenly 
arose to 8857,000, which rapid increase was occasioned by a note 
on the 12th of August for 8540,000, discounted as a stock note 
for S. Smith & Buchanan. On the 22nd of the same month there 
was discounted for S. Smith & Buchanan, another stock note for 
8215,000. The unreasonable magnitude of these discounts, and 
the rapidity with which they followed the Traversers' usurpation 
of the power to make them, conclusively indicate the motives 
which induced such usurpation. They knew that the Board of 
Directors at Baltimore, never would have sanctioned such inordi- 
nate discounts ; and the only mode by which they could command 
at will, for their wild Quixotic speculations, the whole resources of 
the Office, was by the assumption of some high executive power, 
professedly emanating from the Parent Board. And but too suc- 
cessful were they in the device to which they resorted. Whe- 
ther any, or what amount of stock, was pledged as security for 
these two discounts, amounting to 8755,000 does not satisfactorily 
appear. At that time no resolution of the Mother Bank authorised 
a discount on stock at more than its par value. Before those notes 
became due, S. Smith & Buchanan had four stock notes discounted 
amounting to 8531,500, J. W. M'Culloh two notes amounting to 
830,000, and George Williams one note amounting to 890,000, the 
whole seven discounts amounting to 8651,500. It is admitted on 
the part of the Traversers, and also clearly established by proof, 
that these stock note discounts were made to pay for United States 
Bank stock, purchased on their joint account from Dennis A, 



15£ 

Smith, and that but 2558 shares of stock were pledged at the Of- 
fice at Baltimore to secure the payment of their stock note dis- 
counts, is both proved and admitted. It hath been alledsed that 
to secure the payment of the two notes the one for $540,000 and 
the other for $2 15,000, an equal amount of United States Bank 
stock was regularly pledged at the Office at Baltimore, which was 
withdrawn when those notes were paid ; but of this, no evidence 
hath been offered ; and the subsequent conduct of the Traversers 
by no means warrants such an inference in their favour. That 
suppose this, their allegation to be true, when they retired these 
notes, their stock loans at this Office amounted to $65 1,500, to se- 
cure which there never were either then or afterwards more than 
2558 shares of United States Bank stuck, which at $125 per share 
amounts to $3 19,650, leaving a balance of upwards of $300,000 
wholly unsecured by any stock pledged ; at the very moment they 
were withdrawing from the Bank the certificates of stock amount- 
ing to $755,000. Conduct like this can admit of no extenuation. 
It may be contended, that as these Defendants had pledged 
18,290 shares of stock at the Parent Board, to secure discounts 
thereon for the most part at their par yalue, that this stock was 
pledged at $125 per share advance above the par value, as a secu- 
rity for the money drawn out of the Office at Baltimore. Nothing 
is farther from the fact. Had that been the case, a certificate of 
hypothecation for such stock to secure the payment of the Balti- 
more discounts would have been lodged in the Bank at Philadel- 
phia or Branch at Baltimore; it is not even insinuated that any 
thing of the kind ever was done. The same remark will apply 
with still greater force to the stock stated to have been pledged at 
par in London, Liverpool, New York and Boston. The plain truth 
is that for $1,540,000 drawn from the Office at Baltimore, the only 
pledge ever made for its security w r as 2558 shares of United States 
Bank ; on which they discounted upwards of $600 per share al- 
though they well knew that the utmost extension of their powers 
was restricted to $1£5 per share. This fine parade of upwards of 
40,000 shares of United States Bank stock pledged at Boston, 
New York, London, &c. being also a pledge to secure the debt due 
at the Baltimore Office, never entered the imagination of any hu- 
man being, until the Traversers had exhausted their matchless in- 
genuity, in efforts to conceal their misconduct from the Boards of 
Directors at Philadelphia and Baltimore. When false entries, 
false statements and false explanations were no longer effectual to 



153 

uidsk the hideous deformity of their transactions ; then it is thai 
they resort to the mockery of a justification, that stock pledged at 
London, Liverpool, New York, &c. on which they had borrowed 
every dollar that any prudent man would advance upon it, was an. 
adequate hypothecation of stock for their debt contracted at the 
Branch Bank at Baltimore. 

That granting to these Traversers the full benefit of the absurd 
and ridiculous pretence, that every share of United States Bank 
stock, in which they profess to have an interest, in any part of the 
habitable globe, is secured to the Bank of the United States, and 
is legally and bona fide hypothecated for this debt due at the Bal- 
timore office ; are they then freed from the charge for which they 
are now on trial ? Unquestionably not. The utmost extent of 
discounts on United States Bank Stock ever warranted by the Mo* 
ther Bank, was at $12 5 per share. Over and above this SI 25 per 
share upon all stock claimed by the Traversers in any part of the 
world, without even a colour of authority, they admit in their state- 
ment delivered to the Committee of the Board of Directors at Phi- 
ladelphia, that they had drawn out of the Baltimore office, as a loan 
on stock, S3 18,350. For this outrage no attempt has been made 
to offer an apology. This excess they have admitted in their set- 
tlement with the Parent Board : but by reference to the books of 
the Office it will be seen, that they were indebted at the Office at 
Baltimore in a much larger sum on stock loans than gl, 540,000, a 
part of which they omitted to include in their settlement. That 
as respects the resolution of the Parent Board of the 26th August 
1817, it was rescinded about ten days after its adoption, and that 
fact, a matter of public notoriety, was well known to the Traver- 
sers. 

The Attorney General further stated, that having endeavoured 
(and he believed successfully) to shew that the Traversers, with- 
out the colour of authority, had fraudulently and by false preten- 
ces, by combination and agreement between them, in violation of 
their duty and every obligation which they were bound to hold sa- 
cred, defrauded the Bank of the United States by embezzling their 
funds at the Branch Bank at Baltimore to a very large amount ; he 
would now proceed to shew, that they had attempted to conceal such 
fraudulent embezzlements from the Boards of Directors at Philadel- 
phia and Baltimore by divers false entries and statements, in the 



1 



154 

books of the Office, and by other indirect means and artful devices 
That to do this he first submitted to the court the discount book con- 
taining the entries of all notes discounted on stock, in which it is 
falsely stated that the various discounted notes of the Traversers, 
which have been offered in evidence, were secured by a pledge of 
stock of an amount equal to the amount of such discounts, in the 
manner and according to the estimated value of such stock as es- 
tablished by the resolutions of the Parent Board ; when in truth 
and in fact the Traversers had made no such hypothecations of 
stock. He then shewed that similar false entries were made in the 
Credit Book or Discount Ledger, which together with the Discount 
Book are laid before the Board of Directors at Baltimore, for their 
inspection at their semi weekly meetings. That similar false en- 
tries and statements are contained in the statement books present- 
ed to the Board of Directors at the Office twice a week for their 
inspection, which purport to state the amount of loans for which 
stock is duly pledged as a security, whereas, for the discounts 
which the Traversers made for themselves, and which are inclosed 
in said Statement Books, little or no stock was ever pledged. A 
copy of which statement of stock loans, as contained in the State- 
ment Books, was by James W. M'Culloh, regularly transmitted 
once a week to the Board of Directors at Philadelphia, and laid 
before them for their inspection. When the Board of Directors 
at Philadelphia, in consequence of suspicions, but too justly enter- 
tained, on the 20th October 1818, passed their resolution (which 
was forthwith transmitted to the Cashier of the Office at Balti- 
more, and by his letter of the 26th October, its receipt acknow- 
ledged and compliance promised) requiring the cashiers of the se- 
veral offices to transmit to the Parent Bank, a statement of stock 
notes discounted, with the names of drawers and indorsers there- 
of, and the amount and description of stock pledged ; why was not 
this requisition at once complied with ? why this unreasonable de- 
lay in obeying this most reasonable mandate ? Did it require twen- 
ty five days to make out this list ? Mr. Rutter the clerk, usually 
employed in making out such lists, has proved that under any cir- 
cumstances, all erroneous entries, if any, might have been correct- 
ed ; and a correct list as demanded made out and put into the Post 
Office in two days, The reason of this delay then is obvious; the 
Traversers were alarmed at this unexpected requisition, they knew 
that if a true statement of the amount of their discounts on stock 
were taken from the Books of the Office, and transmitted, that all 



155 

their nefarious practices would at once appear to the Parent Board, 
and their fall and disgrace by inevitable. They therefore delayed 
a compliance with the requisition as long as they could, and when 
urged and coerced to obedience, what statement did they make ? — 
A faithful transcript from the books of the Office ? By no means ; 
by a false and fraudulent entry then made in the day book, they 
on the 14th of November 1818, caused it to be stated that errors 
had been committed in entering notes discounted on personal se* 
curity, as notes discounted on stock to the amount of 8852,683 64. 
And this sum was deducted from stock loans, and charged to dis- 
counts on personal security, and stock lists sent on accordingly to 
Philadelphia. No entry was then made ; none has been since made 
on any book of the Bank, to shew what particular discounts had 
been erroneously carried to stock loans, instead of to discounts on 
personal security. And from the manner in which those discounts 
are made and entered, it is utterly impossible that such a mistake 
could have been made. Discounts on personal security are made 
by the Board of Directors ; discounts on stock are made by the 
President and Cashier ; discounts on personal security are entered 
in one book by one clerk ; discounts on stock are entered in another 
book by another clerk. Notes offered for discount on personal se- 
curity are always entered in the offering book, and ticked off by 
the Board of Directors as they are discounted at the Board ; notes 
discounted on stock are never entered any where until after they 
are discounted, when they are delivered by the Cashier to the pro- 
per discount clerk, who makes the necessary entry in the stock 
Discount Book, under the direction of the Cashier. That what 
put this question beyond all controversy, is, that the amount of this 
all edged error was deducted from the amount of the stock loans of 
the Traversers, which discounts or loans were renewed as such, on 
the 12th of November, 1818, three days after the letter of James 
"W. M'Culloh to the Cashier of the Parent Bank, of the 9th No- 
vember, 1818, which was written to pave the way for that sameful 
fabrication which was to follow it. Which letter of the 9th 
November, states, but most falsely, the discovery having been 
made that " entries have sometimes been debitted to loans on stock, 
which should have been to bills on personal security, and vice 
versa." These letters of James W. M'Culloh of the 9th and 14th 
of November, 1818, with the stock lists accompanying the latter 
letter, cannot be viewed otherwise than as false and fraudulent de- 
vices and statements made to deceive the Parent Board, and to 



156 

conceal from them the nature and situation of the stock discounts 
obtained by the Traversers at the Branch Bank at Baltimore. Of 
the same character are the stock and pay lists delivered by the 
Traversers to the Board of Directors of the Bank at Philadelphia, 
bearing date the 8th of March, 1819. The Attorney General 
stated that in offering the testimoney relative to these lists, he had 
proved to the Court, that by the stock list S. Smith & Buchanan, 
are stated only to have had two stock notes discounted, one for 
$97,875 and the other for $137,500 amounting to $235,375, where- 
as by all the books of the Bank, it appeared that they had six stock 
notes dated the 2nd of November, 1818, and discounted on the 
12th, amounting to the sum of $798,301 77. That by said stock 
list, it appeared, that George Williams had two stock notes dis- 
counted, one for $221,875 and the other for $188,150, amounting 
to $4 1 0,025 ; whereas by the books of the Bank, it was most ma- 
nifest that George Williams had but one stock note discounted, ,a- 
mounting to $169,833 34. That James W. M'Culloh appeared 
by said stock list, to have had but one stock note discounted, and 
that for $3,400 on 34 shares of United States Bank stock pledged 
at their par value. Whereas it conclusively appeared that M'Cul- 
loh was indebted to the Office at Baltimore for sundry stock notes 
discounted for his accommodation, and which had been from time 
to time renewed by him, and were then unpaid to the amount of 
$574,001 01. That by the pay list, and the last three items in it 
too, which list is a statement of all notes discounted by the Board 
of Directors at Baltimore, it appears that S. Smith & Buchanan 
had three notes discounted for the following amount ; $251,250— 
$325,000 and $318,350, amounting to $894,600. Whereas no 
such notes are to be found in the Offering Book, which contains 
a list of all notes submitted to the Board of Directors for dis- 
count ; nor in the discount book, which contains a statement of all 
notes discounted by the Board of Directors. And it is moreover 
proved by the Directors themselves, that no such notes ever were 
discounted by them. That it also appeared by the account current 
of S. Smith & Buchanan, kept with said Bank, that the discounts 
of no such notes were ever carried to the credit of S. Smith & 
Buchanan, except the note of $325,0000, which was one of the 
stock notes discounted on the 12th November, 1818, (being a re- 
newal of former stock notes discounted for them) and regularly 
appearing as such upon all the books of the Bank, where it ought 
t»be found. Of the two notes appearing on the stock list asdis- 



157 

counted for S. Smith & Buchanan, no trace whatever is to be 
found, on any book of the Bank, of the note for § 137,500. That 
the two notes appearing on the stock list to have been discounted 
for George Williams, appear in no book of the Bank, and the pro- 
ceeds of such notes never were carried to the credit of George 
Williams, which thej indubitably would have been, had they been 
discounted for him. 

It might be asked what was the object of the traversers in thus 
fabricating notes apparently at pleasure? By adverting to the si- 
tuation of Buchanan, M'Culloh and Williams, and a few facts dis- 
closed in testimony in this cause, the mystery will be at once reveal- 
ed Every thing depended on M'Culloh's retaining his office ; 
whilst he maintained his station his friends could not sink. But 
the converse of the proposition was not equally true. Buchanan 
and Williams therefore consented to step into M'Culloh's shoes, re- 
ceive upon their shoulders the burthen of his transgressions, whilst 
he was to appear before the Parent Board, wholly unconnected with 
their stock -jobbing transactions; as a borrower upon stock only to 
the amount of §3,400, and that amount secured by a pledge of 34 
shares of U. S. Bank Stock at their par value ; and the nature of 
these loans upon stock to Buchanan and Williams, and upon per- 
sonal security to S. Smith & Buchanan were to be explained to the 
Parent Board by Buchanan and M'Culloh in person, in such a way 
that, had not the falsehood of these explanations been discovered, 
they would have been deemed satisfactory, the office in Baltimore 
left in the hands of those who then managed its concerns, and most 
probably the utter ruin of the Bank of the United States would have 
been the consequence. It appeared by the stock list of the 8th 
March, 1819, that S. Smith & Buchanan and George Williams were 
accommodated with discounts on stock notes to the amount of §645,- 
400, and to constitute this sum fictitious notes were inserted in the 
list. It may be enquired, why was this particular sum of §5645,400 
selected as the amount of stock loans ? The answer is obvious.— - 
There were pledged at the Office in Baltimore 2558 shares of U. 8. 
Bank, which at §125 per share amounts to §319,750, and in the 
mother Bank there were pledged at par 1 -026 shares ; a discount of 
§25 additional per share on which would produce §325,650, which 
two sums added together make the precise sum of §645,400, the a- 
mount stated by the list to be discounted for Buchanan and Wil- 
liams on stock; thus their discounts on stock appeared never to 
have exceeded §125 per share. This last mentioned amount sub- 






158 

fracted from the g 1,540,000, admitted by the traversers as the a- 
mount of their stock note discount at the Office at Baltimore, leaves 
$894,600, the exact amount of the three notes stated in the pay list 
to have been discounted for S. Smith & Buchanan on personal se- 
curity. To have shifted the responsibility of having discounted 
these three last notes from the traversers to the Board of Directors 
at Baltimore, with such plausible, though false, explanations as Bu- 
chanan and M'Culloh were prepared to give of the origin of these 
notes, was surely the most ingenious and favourable aspect in which 
the conduct of the traversers could be presented to the Board of Di- 
rectors at Philadelphia; and these explanations are what the coun- 
sel for the accused triumphantly declares will be their complete 
justification both in the eyes of God and man ; that instead of a cri- 
minal prosecution, they deserve the lasting gratitude of the Bank 
of the United States, in having patriotically thrown themselves into 
the breach and saved the Bank from a loss of 8800,000, and the 
public from inconceivable sufferings and distress. This they stat- 
ed as their defence; that but for the purchases made by them of Den- 
nis A. Smith of the stock of the Bank of the United States, the Me- 
chanics' Bank of Baltimore would have been insolvent and wholly 
unable to pay a debt of $800,000 due to the Office at Baltimore. — 
Need it be asked whether such defence has not wholly failed in 
proof? nay, has it not been conclusively disproved by the testimo- 
ny offered on the part of the State ? As proof of the latter, the At- 
torney General presented to the view of the Court the testimony 
of Alexander Brown, R. L. Colt and others, shewing that there ne- 
ver was any apprehension for the solvency of the Mechanics' Bank 
of Baltimore after the 24th of April, 1817, when the committees 
from that Bank and the Office had their meeting relative to the debt 
due from that Bank to the Branch Bank at Baltimore. 

Arrangements perfectly satisfactory were then made for the 
extinguishment of this debt, which were carried into execution 
without difficulty, and the credit of the Mechanics' Bank remain- 
ed unimpaired. He also shewed that the first purchase of stock 
made by the Traversers of D. A. Smith, was after the Mechanics' 
Bank had made its arrangements with the Office. That of the 
two first sales of stock by Smith to the Traversers, amounting to 
upwards of $2,500,000, little or no part of the proceeds was ap- 
plied to the payment of the Mechanics' Bank debt. That long 
anterior to the purchase made in December, of the 12,000 shares 
«f United States Bank stock, the standing debt of the Mechanics' 



159 

Bank to the Office, wa9 considered as at an end, the balance due 
being about 8100,000, a much less sum than was then due by many 
if not most of the Banks in Baltimore, as would appear by refer- 
ence to the statement book of the Office, various entries in which 
were refered to. The Attorney General then closed his remarks, 
by reading a letter from J. A. Buchanan to William Jones, presi- 
dent of the United States Bank, dated on the 25th of April, 1817, 
the day after the meeting of the Committees, giving an account of 
the proceedings of the Committees, and concludes by stating "that 
a full, free and unreserved interchange of opinion took place, the 
result of which is, a satisfactory conviction to our minds that the 
Mechanics' Bank can sustain no loss by Mr. Smith," "and we 
entertain no apprehension for its safety or reputation." " Measures 
are ingrain which will produce to us {his day a payment of four 
hundred thousand dollars." And also read another letter from J. 
W. M'Culloh to Jonathan Smith,, Cashier of the United States 
Bank, dated June 23rd, 1817 — and likewise a letter from J. A„ 
Buchanan to Jonathan Smith, bearing date the 31st of October* 
1 81 T, in which Buchanan writes that by the arrangements made 
with the Mechanics' Bank, which had nothing to do with their pur- 
chases of Bank Stock, we " have reduced the very heavy debt due 
us to almost nothing. We have done more. Our account with 
Boston and New-York, has been considerably relieved, and the 
Mechanics' Bank is of unimpaired credit." These letters demon- 
state the absurdity and falsehood of the grounds on which the 
Traversers have, in a great measure, rested their defence, 



160 
GENERAL WINDER s ARGUMENT 

FOR THE TRAVERSERS. 

He had until now anticipated the pleasure of carrying with hint 
even the gentlemen who were opposed to him ; but it appeared that 
thej were pleased with escaping from a conviction of the innocence 
of the Traversers, and even exulted in his supposed defeat. Still, 
however, he would not give up the hope of convincing them, if 
they could view the circumstances of the case in their true light, 
uninfluenced by any prejudices which they might have imbibed, as 
counsel for the prosecution. 

He would endeavour as distinctly as possible, to shew to the 
court the deductions which should be drawn from the mass of evi- 
dence that had been offered on either side : And however great 
the ingenuity exerted on the part of the prosecution, to impress 
the idea of the guilt of his clients, he hoped that the court would 
presume them innocent, until there was proof positive to the con- 
trary. 

The indictment charged the Traversers with a conspiracy to 
cheat, and to embezzle large sums of money for their own use, 
without paying any interest; and with using for that purpose 
subtle devices, false enterics, &e. &c. He knew his duty to the 
court and to his clients too well, to appear there for the romantic 
purpose of defending them against conjectural charges. This was 
a charge to cheat and embezzle by the means stated in the indict- 
ment. No doubt the grand jury had evidence before them, which 
justified them in finding the bill containing this specific charge : 
but this court never for a moment could suppose, that they had 
evidence of an actual conspiracy, or of any agreement in fact be- 
tween these parties : It must have been merely an inference drawn 
from the circumstances detailed in the indictment, that there was 
a conspiracy to obtain a large sum of money, by the means there 
set out. Unless there was evidence given of the identical con- 
spiracy for which the bill was found, the court must pronounce the 
Traversers not guilty ; although a similar offence, but which was 
not indentical, might be proved; since there was no use of identity 
in the description of a crime, if the prosecutors may cut it loose 
from all the indications given in the indictment. It was the duty 
of the court to mitigate, assuage and restrain crime. If A conspir- 
ed to burn the banking house, although it was a conspiracy to in- 
jure, still it was not such a one as was charged. If we cut our* 



161 

selves loose from the indictment, we would at once put the party 
in jeopardy, when the law delights in protecting him. The Law ab- 
hors that the trying court should hear evidence, which proves a 
crime different in its nature from the one before the grand jury* 
These remarks, General Winder continued, would hereafter be 
applied to the over drawings. If the grand jury were to set out 
the means by which the conspiracy was accomplished, although 
not obliged to do so, the party came into court to meet those 
means which afforded an inference to the grand jury, and he 
ought not to be surprised by hearing others advanced against him, 
of which he had received no notice. He would now call the at- 
tention of the honorable court to the facts of the case ; and first, 
to the evidence relating to the connexion between the Mechanics' 
Bank and Dennis A. Smith ; as it was contended, that the opera- 
tions on which the indictment was founded, began with the debt 
of that Bank to the Office, went on with it, and ceased v/ith it. 
From this evidence it was inferred by the prosecution, that the Me- 
chanics' Bank never was in danger, and that no fears for its sol- 
vency were ever entertained. This inference, he continued, did 
indeed appear very extraordinary. It was proved by the testimo- 
ny of Mr. A. Brown, that D. A. Smith owed the Mechanics' Bank 
in April 1817, §600,000, and the subsequent discovery of a further 
debt of §400,000, made the whole amount to §1,000,000. The 
impression of Mr. Meredith was, that the debt was §1,200,000, 
and it was ascertained in truth to be nearly one million of dollars. 
This was in April. Mr. Dennis A. Smith's vast and beneficial 
operations during the war, and his subsequent unfortunate com- 
mercial transactions, caused his failure ; at which time he was in- 
debted §5,000,000, all of which was discharged and adjusted in the 
space of one year. It was a national matter to sustain a man whose 
obligations amounted to §5,000,000. He suspended payment in the 
month of April, with means scattered, involved and complicated 
to such an exteut as to be nearly useless. Immediately on this 
debt to the Mechanics' Bank becoming public, all persons having 
claims against it would have pressed for payment. The capital 
of the Mechanics' Bank was §600,000, and the Bank of the %iit- 
ed States held the lash over this and all the other Banks, to com- 
pel them to pay specie or close their doors. This was the situation 
of D. \. Smith with the Mechanics' Bank. What was the situati- 
on of the Mechanics' Bank with the Ofjice of Discount and Depo- 
2% 






162 

sit? He (Gen. W) would now call the attention of the court to the 
situation of the Mechanics' Bank during the year 1817. 

1st. As to the genera] statements. On the 24th April 1817, the 
day of the meeting of the Committees, the Mechanics' Bank was 
indebted to the Office of Discount and Deposit, g71 3,670, and a 
daily balance of 825,405, making in all, 8739,075. It was said 
nevertheless on the part of the prosecution, that the Mechanics' 
Bank was then in no jeopardy, although it was known that D. A. 
Smith owed it 58600,000, and that it was obliged to curtail daily 
to meet the approaching exigency of specie payments ; besides, as 
we may safely presume, being indebted to all the Banks in the city, 
and many elsewhere. If then the Committee from the Office of 
Discount and Deposit stated that it was " in no jeopardy," the ex- 
pression must not be taken in a literal sense ; for it is impossible that 
guc h intelligent merchants, as those composing that committee^ 
should h ave meant it to be understood without some modification. 
Suppose th at * ne Mechanics' Bank had paid one half of its debt ; 
there woul<5 still have remained due to the Office near $§400,000 ; 
and after suci^ an abstraction of funds, where was the money to be 
obtained to satis/V its other creditors ? In their report, the Commit- 
tee did not mention^ the means which ensured the safety of the Me- 
chanics' Bank, and it' must have been a hasty deduction for them 
to suppose, that it was s^fe to creditors but not to stockholders.*— 
They also made no mention tf D. A. Smith's payment to that Bank, 
which was to enable it to makt? payment to the Office of Discount 
and Deposit ; for it was utterly impossible to suppose, that the Me- 
chanics Bank could pay its creditors, unless D, A. Smith first paid 
the Mechanics' Bank ; otherwise the oiSce could only have expect- 
ed a proportional payment ; or even if it had been able to satisfy 
the office, it would have been bandkrupt as to its other creditors. 
Suppose then, Gen. W. continued, that the committee took Dennis 
A. Smith's situation into view, and his probability to pay the Me- 
chanics' Bank, and you had a sufficient basis for their opinion that 
it was no jeopardy, "without a ghost to tell you." If the v believed 
that Dennis A. Smith would pay the 8600,000, then it certainly was 
notff rash and unfounded judgement? for then the Mechanics' 
Bank would be solvent. As to specie payments, these had been re- 
sumed to individuals before April ; although between the Banks 
themselves they were deferred until 1st July, 1817, and constituted 
the most pressing claims on the Banks. 



163 

On the 26th of April 181T, the Mechanics' Bank owed to the* 
Office of Discount and Depoist, 8823,087 

On the 28th of April, the first discount obtained by 

the Mechanics' Bank, 300,000 



81,123,087 
This discount was applied to purchase bills of funded debt to be 
sent to Boston ; so that in fact the debt was increased, because the 
money obtained was not applied immediately to its extinguishment* 
On the 1st of July 181 7, the debt of the Mechanics' Bank amount- 
ed to 8469,804 ; on the 24th December 1817, was 8173,953 10. 
In that month the exchange operations had entirely ceased, and 
there was a discount debt of 8150,000, making the whole amount 
8323,953 10. On the 8th of January 1818, the Mechanics' Bank 
discounted at the office a note of 850,000. Hence it appears, 
that the debt of the Mechanics' Bank in April was 8823,087; re- 
duced in July to 8469,804, and in December to 8323,953 10; and 
Dennis A. Smith went on with funds obtained from the Defendants, 
by his sales in April and June, to pay through that year. 

In the second place, he (Gen. W.) would examine into the rea- 
sonableness and probability of the foregoing deductions. 

The only means suggested to Dennis A. Smith, to enable him 
to go on, was the sale to the defendants of 7404 shares. But it 
is objected on the part of the prosecution, that the funds did not 
go straight into the office. The Attorney General gratuitously as- 
sumes, 1st that the exclusive object, of these operations was to save 
the Office of Discount and Deposit from loss; and 2d, that Dennis A. 
Smith was willing to sell his stock, without caring to what purpose 
the proceeds were applied. If these suppositions were true, what 
temptation could Dennis A. Smith possibly have had to make the 
sale to the defendants ? His object was to continue payment. 
He wished to meet other engagements, and save his funds from be- 
ing seized and sacrificed. He alone knew how to relieve him- 
self from his burthens, and of course should have had the dispo- 
sal of the funds arising from the sales. His object was not merely 
to pay the Mechanics' Bank. His estate would not have done 
more than that, instead of paying 85,000,000, had it been put into 
the hands of Trustees and others to be sacrificed. By means of the 
sales to the defendants lie was enabled to go on. It is further said 
by the Attorney General, that these shares were Dennis A. Smith's 
own property ; if so, I think, it is a miracle if they were not pledg- 



164 

eti up to their ears ; certainly they were pledged at par although 
not to their full value. The profits on the first sale were SI 40,000 
which enabled Mr. Smith to resume his payments. The Defend- 
ants had his situation in view in April 1817, and had they applied 
the whole fund to the payment of the Mechanics' Bank, it would 
at once have defeated their object, and prevented his meeting any 
other engagements. 

The only information given to the board by the committee was, 
that secrecy was enjoined, but that affairs were going on prosperous- 
ly. But if the committee were in fact satisfied, as they stated, that 
the Bank was in no jeopardy, why this silence ? Secrecy is a 
part of every system to support a tottering Merchant or a totter- 
ing Bank. 

No power, no authority was given to the President and Cashier 
to purchase bills to remit to Boston, a part of this arrangement 
which they alone executed, other than was given to purchase stock; 
yet no complaint was ever made of want of power to send the bills 
and remittances to Boston. How came the debt to swell, General 
"W. asked, between the 24th and 28th of April, unless by the pur- 
chase of the bills for Boston. This was satisfactory to the commit- 
tee, and the Board would not enquire further because of the injunc- 
tion to secrecy. Hence General Winder inferred, that the 
committee knew of the agency of the President and Cashier in 
both instances, as well in the purchase of this stock as of the Bos- 
ton bills. 

Friday Morning, April 5th. 
General Winder in continuation. 

The charge to the Mechanics' Bank was merely nominal, be- 
cause the Office of Discount and Deposit had the bills and funded 
debt as good security for the discount of §300,000 ; and if they had 
been lost, the debt would been increased to that amount. The dis- 
count, was credited to the debt, but the Mechanics' Bank was charged 
for the amount advanced for bills &c. so that the credit was in 
fact only nominal. The whole operation ended in July, and all 
discounts afterwards were different from the line in the statement 
book. He (Gen. W.) had selected the three periods of April, June 
and December, in speaking of the debt of the Mechanics' Bank to 
the Office, because they corresponded with the dates of the sales of 
Dennis A. Smith, and explained the way in which the payment of 
his debt to the Mechanics' Bank affected the Office of Discount and 



165 

Deposit. The Office was compelled to received the notes of the 
Mechanics' Bank as a Specie paying Bank, and thus accumulate 
the debt, or it would have defeated the very object of its measures, 
and forced the Bank to close its doors. No other Bank was oblig- 
ed to negociate with the Office, none so hopeless. We might then, 
General Winder continued, safely assume, that the Mechanics' 
Bank was in a very dangerous situation, and that in order to re- 
lieve it the office discounted Mosher's note, and made other efforts: 
and also, that the advances for funded debt and Bills of Exchange 
were made in the same manner as the purchases from Dennis A. 
Smith, without consulting the board, by the Executive Officers. 
The memory of Mr. Colt on the present occasion was rather short, 
as he had himself actually sold one of the bills, and made out bills 
for the Olivers for another. 

The general operations went on without a meeting of the Com- 
mittee ; the effective instrument being the payment to D. A. Smith, 
which affords strong presumption that the Committee knew of 
these transactions. 

With regard to the positive proof on the subject, General Win- 
der said, he would show that these purchases of stock were made 
with the knowledge of the Committee. The evidence of Mr. 
White, Mr. Beatty and Mr. Finley proved, that in March 1819, 
the president took the pay list and explained to the Directors the 
cause of making the purchase s,"and his intention to go to Philadel- 
phia in order to satify the Parent Board. All these explanations 
were given to the Board in Baltimore, and General Winder ad- 
duced Mr. Colt's approbatory expressions in support and vindica- 
tion of the conduct of the Defendants, with regard to the purcha- 
ses. Mr. Colt's testimony was in conflict with that of five other 
witnesses; but he, (Gen. W.) would not discuss the comparative 
credibility of these witnesses, with one whose feelings were cer- 
tainly deeply involved in the prosecution ; especially where Mr. 
Colt's testimony was merely negative, and that of the others affir- 
mative. That the board then, were notified of these purchases by 
the president, was proved by five witnesses, and that they met 
with the approbation of Mr. Colt and Mr. L. Tay lor, members of 
Committee, is proved by two witnesses ; besides, if they were not 
approved, why was not an investigation called for ? The president 
stated that the purchases had grown out of the conference between 
the Committees from the Office of Discount and Deposit, and the 
Mechanics' Bank, and had been made with their concurrence. — 



166 

By not calling for an investigation, the Committee concurred in 
the fraud and deception, if any, which was practised on the Board : 
Hence, he (Gen. W.) inferred, that the President and Cashier did 
what they believed to be a fair execution of the views of the Com- 
mittee. If this fact is material, or if the evidence is weak, the court 
or jury might doubt the extent of the recollection of the witnes- 
ses, but ought not to say, that the Committee were ignorant of the 
circumstances ; for, at least, such is not positively proved on the 
part of the prosecution, and negative testimony merely should not 
be received as proof. 

He (Gen, W.) did not pretend to say, that the Defendants had 
no interest in these purchases ; for it would be romantic to suppose 
they would have adventured thus without any view to their own 
emolument; on the contrary, the gains on the stock purchases from 
D. A. Smith, would have amounted to 8900,000 clear. 

A mingled motive, Gen. Winder continued, entered into all 
great transactions for the benefit of mankind. The Defendants 
expected to make vast profits ; and was not that a strong justifica- 
tion, when the money taken from the Bank was secured by pledges 
of stock, which it was expected would increase in value ? It was 
a forced construction, made to impute guilt, to say that their ob- 
ject was to cheat the Bank out of the interest of the money, when 
the fair construction was in favor of innocent intentions. 

It is said also, that although they did not conspire with an ac- 
tual intention to defraud, yet as it was one likely to be injurious in 
its consequences, it must therefore be considered as a fraud. God 
forbid that such should be the rule of Criminal of Law. That if 
a man exceeds his authority in the exercise of discretionary power, 
and his speculations turn out unfortunately, he shall be held cri- 
minal, although there was no intention to defraud. There is a le- 
gal fraud in a civil point of view, but not under the criminal law. 
Nothing is said by the court of Appeals, which can convert an ac- 
tion destitute of fraud into origin, to a crime by its consequences. 

The Defendants could not have had any fraudulent intentiong, 
or they would not have recorded the loans in every book of the 
Bank where they might be seen by all. Not only were they re- 
cordedjin the ledgers, but in the very books which were brought be- 
fore the Board. The Statement Book — Offering Book — Credit 
Book — each particular name and sum ; and although no detail of 
the security was given, yet all was done that could be required of 
the Defendants. If this doctrine was sanctioned by the court, no 



167 

tws partners could become indebted and aftewards fail, without 
being indicted for a conspiracy ; especially if their security had 
been insufficient. A Trustee, Curator, Depository or Commission 
Merchant, could never appropriate money in his hands, however 
confident of success, without being indicted for a conspiracy on 
his failure, if there were more then one concurred. All Commer- 
cial House9, Commission Merchants, &c. deposit the proceeds of 
cargoes in the Bank with their own money, and check upon it : 
and how many houses when they fail are indebted in this way ;. and 
yet, under the doctrine contended for, they would all be indictable; 
It is said to be like a case of forgery ; but I do not admit the law, 
that a forgery made in a jocular manner, and used by another for 
the purposes of fraud, is subject matter for an indictment. There 
must be an actual intention to defraud. The very act there is 
punished. But here it is contended that the consipracy need not 
be proved, but may be inferred from circumstances which admit- 
ted of two constructions— -And shall the law say that such circum- 
stances sufficently prove the iniquity of the intent ? In forgery 
the very act of making must be proved, not so for a conspiracy. 

The Defendants were charged in the indictment with taking 
money, purposing to use it without the payment of interest-- All dis- 
counts, however, by the Defendants, appeared to have been regu- 
larly deducted at the times of renewal. Conspiracy must have 
existed at first ; and of course, subsequent false statements are no 
evidence of a previous conspiracy. This applied to the pay lists and 
stock lists. The details were always stated in the credit book, and 
the aggregate was every day laid before the Board in Baltimore, 
and sent weekly to Philadelphia. All the entries were continued 
unaltered after the transfer of §852,000, and were exhibited to 
the Directors as well after as before. The transfer was carried 
into the general ledger of stock loans, and this book was not 
brought before the Directors, so that the alteration there could not 
deceive them ; and the statement book never gave any details of 
the borrowers, but showed the augmentation of note list, and de- 
munition of stock line in a day, between the 12th and 16th of No- 
vember to be S852,000. This certainly could not escape notice, 
when the Board knew the amount of their discounts ; it rather 
invited the Directors to examine into the other books to see if all 
the entries had been truly made. How then could it conceal from 
or impose upon the Board in Baltimore. Could the court gratui- 
tously suppose it contrived to produce aneffect, which it manifestly 



168 

could not produce. The debt was secured in the same manner 
both before and after the alteration in the books. The fact of the 
alteration was before the Board and explanation invited by it. A 
Committee was named to inpect the affairs of the Bank, consisting 
of Mr. Colt, Mr. Hoffman and Mr. M'Kim. Mr. Colt declared 
that his suspicions existed at the time, and the tart reply which he 
attributes to one of the Defendants, he must have received from 
some other member of the Board in a jocular tone. 

There could have been no motive for deception in this, as the 
board in appointing the committee only acquiesced in the demand 
of the Cashier, J. W. M'Culloh. Why did not this commit- 
tee meet and enquire ? If interrupted by the committee of 
Congress, could it not have met afterwards ? Various conjectures 
might be made as to the motives for this change, consistent with 
the innocence of the accused ; an^ ought to be made, if possible, 
rather than the inference of criminality. 

The transfer entry was continued until March 1819, it is said, 
when the defendants announced to the board their intention of go- 
ing to Philadelphia, to make the same explanations there, that had 
been made in Baltimore. If such was really their design, if their 
purpose was to explain in this manner, then how were the stock 
list and the pay list means of deceit ? Or could it be supposed for 
an instant, they would have imposed upon the Parent Bank ? 
'They were kept in the condition they had alwaj^s been, in conse- 
quence of the transfer entry, and corresponded with it. Either 
alone would have imposed on them, but with the explanations nei- 
their could have deceived the Directors. 

It is admitted that verbal explanations were given to the board 
in Philadelphia, but denied that they were the same as those given 
in Baltimore. The inference, however, is more probable, that they 
were precisely the same, and that the statement x in writing was 
there exhibited. This expression ought not to be construed as 
rigidly as an act of Congress. The word verbal might embrace 
the paper x, for the paper was insufficient explanation by itself, 
and so were all verbal explanations when unaccompanied by the 
paper. It must therefore be understood that the verbal expla- 
nations were given, and the statement x exhibited to the Present 
Board; as on the 30th, if not the 16th of March, it was before the 
Directors, The presumptions of the Attorney General to the con- 
trary, were gratuitous, and not supported by the evidence which 
had been received. If then, either on the 16th or the 30th of March, 



161) 

made an exposition of the true state of affairs, the pay list and stock 
list could not have accomplished any of the purposes for which it 
is said they were intended; as the debt of the defendants to the full 
amount of SI ,510,000 appeared upon the face of them. There 
was no concealment for the purposes of fraud, for they were 
obliged to ask indulgence from the Parent Board. They inform- 
ed it, that they were debtors on personal security, and not on 
stock ; which made however no essential difference, as security 
had to be given in the end. This statement was admitted by 
the Directors of the Parent Bank to be true, and upon that ba- 
sis they unanimously agreed to treat with the defendants. 

Assuming then, (General W. continued,) all the facts there set 
forth to be true, lie found that the defendants had became debtors to 
the amount above mentioned, by loans on stock; and that on the 30th 
of October the board directed the very notes on which this prose- 
cution rested to be delivered up to these men, fairly settled. Was 
it not then too much, after such a settlement with creditors, to say, 
that this money was taken out of the Bank with an intention to de- 
fraud ? Was it not placing the transaction in a false point of 
view ? 

There was indeed defect of authority. They had no lite- 
ral charter for their conduct. But it was a discretionary power 
which was honestly exerted, never concealed, and always appeared 
spread in the Books of the Bank, from beginning to end. 

And now the prosecution ask to carry the Court back to the 

total blasting of character by such terrible . He would not 

look into the consequences. The doctrine which was contended 
for by the prosecution, if sanctioned by the Court, would be most 
likely to affect the most honorable men, who conscious of the integ- 
rity of their motives, act with a careless confidence. The Court 
might attribute as much indiscretion as they pleased, but should 

pause before they attributed- . He (General W.) hardly 

knew how to approach or leave the subject, it was so awful in its 
consequences. If he should be mistaken in his views, if he should 
trespass, he hoped the honorable Court would indulge him, when 
they considered the deep deep responsibility under which he stood. 
The defendants had been plunged from the highest pinnacle of 
wealth, and were now under an infamous imputation. He asked the 
Court to look back, and see the many causes which led to this des- 
olation and misery. How did the Bank become a looser ? Could 

S3 



170 

the defendants ever have supposed that they were about to inflict 
loss on the Bank and ruin on themselves, by the last purchase from 
Dennis A. Smith ? If they did not believe it, they could not have 
intended it. Adverse circumstances had depressed stock, when, 
if it had risen, the defendants would have been looked upon as no- 
bles, as the architects of their fortunes, by the very men who now 
prosecuted them, and lauded to the skies as possessing spirits 
fraught with enterprize. 

France, a short time before the period at which these transac- 
tions took place, made an immense loan from England, which di- 
verted the funds that would otherwise have been appropriated to 
the purchase of United States Bank Stock in England, and made 
it a drug in the market. The appointment by Congress of a Com- 
mittee of enquiry completed the catastrophe. Did the Bank after- 
wards pursue the proper course to heal the wounds. Its strange 
administration was an incubus upon it, and was another cause of 
depreciation of its Stock, so that, in fact, the Bank itself occasioned 
the losses upon which the present indictment was founded. 

After summing up the principal points in his argument, General 
Winder concluded. 



171 
GENERAL HARPER 



XZT HEPLY. 



My learned friend, may it please your honors," who has conducted 
the defence of the Traversers with so much zeal and ability, re- 
marked in the commencement of his very eloquent address, that 
the counsel for the prosecution seemed not only to be convinced 
of his failure, but to view it with exultation. As far as I am 
concerned, and I am sure that I may answer for my learned col- 
leagues also, I can assure him that he has wholly misunderstood 
our feelings. For myself I can say, and I feel confident that I 
may say for them too, what I have already had occasion to say in 
the progress of this cause, that I take pleasure in no man's punish- 
ment, still less in any man's guilt ; and that if the testimony ad- 
duced by the Traversers had made the impression on my mind, 
which it appears to have produced on the minds of their counsel, I 
should have hailed the conviction of their innocence with at least 
as much exultation, as he supposes me to feel in the contrary belief; 
and should have proclaimed it here and every where else, with the 
highest satisfaction. 

Instead of exultation I feel grief and disappointment, in their 
total failure to exculpate themselves, either in a legal or moral 
view, from the charges contained in this indictment. It is not, 
however, their punishment or degradation, but their guilt, that I re* 
gret : for it is a wise and beneficent ordination of Divine Providence, 
indispensible for the government of the world and the maintainance 
of civil society, that loss of character, loss of station, remorse, and 
mental if not corporeal suffering, should follow the proof, and often- 
times the mere consciousness, of crime. Human tribunals sometimes 
fail to detect guilt, either through defects or uncertainty in the 
proof, or those errors in judgment from which the wisest men are 
not exempt. Divine Providence has therefore in its wisdom and 
beneficence, erected a tribunal in every man's bosom, which he can 
rarely elude, and in public opinion from which it is still more dif- 
ficult to escape. These tribunals come in aid of the imperfect in- 
stitutions of man ; and inflict by remorse and dishonor that punish- 
ment, from which the good of society, and indeed its preservation, 
require that the guilty should not wholly escape. Being myself 
thoroughly convinced, much to my regret and mortification, though 



not to my disappointment, that these persons are guilty of the of- 
fences charged against them in the indictment, it becomes my pain- 
ful duty to lay open to the court, the grounds on which this convic- 
tion rests, and to remove the flimsey veil which they have endea- 
voured, in the course of their defence, to throw over their conduct 
and their motives. I speak with great sincerity, wheu I call this a 
painful duty. As it was not imposed on me by any official obliga- 
tion, no consideration would have induced me to assume it, had I 
not been previously satisfied of the guilt of these parties, by the 
best examination of the subject, which I had the means of making. 
Having undertakerf it, and my first convictions having been con- 
firmed instead of being shaken, by the full and patient investiga- 
tion which the court has witnessed, no consideration whatever 
shall prevent me from fulfilling it, vigorously and effectually. 

The first enquiry is, with what are these parties charged by the 
indictment ? The charge, divested of its technical forms, amounts 
to this ; that they conspired together to cheat the Bank', by getting 
into their possession through false and fraudulent devices, a large 
sum of its money, with intent to keep it two months without pay- 
ing interest. 

I shall hereafter have occasion to enquire how far this latter 
allegation, respecting the non-payment of interest, is at all mate- 
rial to the support of the indictment ; but for the present 1 will 
take it to be material, and proceed to ascertain, in the proper 
place, what is its true construction, and how far it has been proved. 
In applying to this charge the proof that has been adduced in its 
support, I will first remark, that these Traversers never received 
either from the Parent Bank or the Baltimore Branch, that authori- 
ty to discount on pledges of Stock which they pretended to pos- 
sess, and actually employed as the means of effecting their fraudu- 
lent designs. On this head the proof is ample and undeniable. 
Indeed no attempt is made, on their part, to prove an authority 
from the Parent Board; the existence of which fully is disproved, 
by the production of all its resolutions on the subject : and although 
there was" a feeble attempt, to prove an authority from the Branch 
Board, it utterly failed. The existence of such an authority is 
indeed positively disproved. No less than seven Branch Directors, 
most respectable and intelligent men, very regular in their attend- 
ance at the Board, have sworn that no such authority had ever been 
heard of by them, or to the best of their knowledge ever claimed 
or alledged by the Traversers ; who on the contrary always al- 



173 

ledged to the Branch Directors, that they held the authority from 
the Parent Board. 

And what I take to be quite conclusive on this point is, that 
the Books of the Branch Bank, where the resolution conferring 
this power if it existed must appear, have been in Court from the 
commencement of the trial, open to the inspection of the Travers- 
ers and their Counsel, and still are so, and yet no intimation has 
been heard that they contain any such power. Another conclusive 
answer is, that the Branch Board had no authority to give this 
power. The power was given to them by the Parent Board, 
without any power of delegation or substitution; which in such a 
case cannot be implied. 

We are next to remark that these persons never had, in the 
Office of Discount and Deposit at Baltimore, more than 2558 shares 
of Bank Stock; which at par amounted to $255,800, and at 25 
advance to no more than $329,750. It does not appear when they 
purchased this stock. Ail that we know about it, is derived from 
their statement presented at Philadelphia, in March 1819, (a) and 
from the report of the 14th of May 1819, to the Parent Board, (b) 
Whether they possessed this stock, or any stock at all, in the Bal- 
timore Branch, in August 1817 when these stock loans commen- 
ced, they have not informed us, nor have we any means of ascer- 
taining. But admitting that they had at that time the whole 
which they ever had, it could have covered, at the rate of SI 25 per 
share, or 25 per cent advance, but $329,750. 

The next observation to be made is, that even this small and 
inconsiderable amount of stock, small and inconsiderable I mean 
in proportion to the vast extent of their loans, was never in 
any manner pledged or hypothecated to the Bank, so as to make 
it operate as a security to any extent whatever. This is in clear 
proof, by the testimony of Mr. White and Mr. Beatty ; and by the 
memorandum in red ink affixed in the list of effects, to the pretended 
stock notes of these parties, by Mr. Warfield.fc^ The resolution 
of the Parent Board on this subject, that of July 25th 1817, im- 
ports that such loans shall be " secured by a pledge of stock of this 
Bank, or funded debt of the United States;" and it requires ex- 
pressly " that blank Powers of Attorney to transfer or sell the 
stock or debt so pledged," shall be transmitted to the offices of 
Discount and Deposit, so as to inform them of the proper 

(a) paper x See page 91 (b) See page 107—8. (c) See page 45, 46. 



per manner of making the pledges effectually. It is perfectly clear, 
that nothing short of an actual deposit of the certificates of Stock, 
in the hands of the Cashier, with a power to sell and transfer it in 
default of payment, could give the security required by the Bank, 
or any security whatever. Without such a deposit and power it 
is quite undeniable, that the Bank could not have any specific 
lien on the Stock that might belong to their borrowers, nor be able 
to hold it against any person to whom it might be subsequently 
transferred or pledged, for valuable consideration and without no- 
tice. 

We are also to recollect that it is very doubtful/whether the Branch- 
es were ever authorized to discount on pledges of stock, however re- 
gularly made, beyond the par value of the stock pledged. The resolu- 
tion of July 25th 1817, (a) the only one that gave express authority on 
this, subject to the Branches, confines in terms the loans which they 
were authorized to make, on pledges of Bank Stock or funded debt, 
" to the par value thereof." The resolution of August 26th 1817, 
(b) which authorizes loans on stock to the amount of gl25 per 
share, or 25 per cent above par, is general in its terms. It speaks 
merely of loans on the stock of the Bank," without expressing by 
whom they were to be made. It was therefore a matter of con- 
struction and inference, whether they were confined to the Parent 
Bank, or extended to the Branches; and criminality certainly cannot 
be inferred from an erroneous construction, whatever may be its 
effect on civil rights. But on another point the resolution is quite 
explicit. It [provides in express terms, that where the sum lent is 
greater than the par value of the stock pledged, there shall be 
" two approved names" for the excess. Now it is impossible to 
conceive that these two names were to be " approved" by the 
President and Cashier, when they happen themselves to be the 
borrowers, on their own notes; and consequently when the names 
to be approved are their own names. 

This resolution therefore clearly and undeniably imported, that 
when a loan on stock exceeded the par value of the stock actually 
and effectually pledged, and especially if the borrowers were the 
President and the Cashier on their own notes, these notes so far 
at least as regarded the excess above par, were to be laid before 
the Branch Board, and approved by them. 



fa J See page 26. fbj See page 26. 



175 

Thus we see in the first place, that there is no evidence what- 
ever that at anytime in August 1817, or from then till March 1819, 
these persons had any stock whatever in the Branch Bank at Bal- 
timore : Secondly that the 2558 shares which they appear to have 
had there in March 1819, never were in any manner hypothecated 
% to the Bank, so as to give it a lien on them of any kind : Thirdly, 
that if these shares had been hypothecated, they would have cover- 
ed at par a loan to no greater amount then 8258,800 : Fourthly, 
that the excess of 25 per. cent, above par, would have raised the 
loan to no more than 8329,750 : And fifthly, that had every thing 
else been right, still the notes for this excess above par, amounting 
to 863,950, were required in the most express manner to be brought 
before the Board, for its sanction. 

Having established these preliminary points, we are now in a 
situation to commence the developement, of this scene of fraud 
and imposition. And we are to remark in the outset, that our en- 
quiry is not confined to the 81,540,000, or rather the 81,542,136 12, 
which make up what is commonly called the Stock loan transac- 
tion. This indictment equally embraces the loan of 8540,000, 
granted by these persons to themselves, or one of themselves, on 
the 12th of August 1817, (a) on pretence of [a pledge of stock 
which did not exist. 

This was the first fruit of the power which they got into their 
hands, on the same day, of discounting upon pledges of stock, 
without consulting the Board of Directors. It has appeared in 
full proof, and indeed is not denied, that up to that day, the power 
conferred on the Offices of Discount and Deposit, by the resolution 
of July 25th, 1817, had been exercised by the Board of Directors 
itself. Then, by an artful suggestion, evidently made with a view 
to the intended frauds, it was drawn to themselves by the Presi- 
dent and Cashier. What was this suggestion ? Several of the Di- 
rectors, who have been examined as witnesses, have furnished us 
with a clue to the answer; particularly Mr. M'Kim, (b) and I think 
Mr. George Hoffman. ( c ) They stated that as the stock pledged 
was the best security, about which there could be no doubt, and 
consequently no need of reflection or conference, they thought the 
reference of such loans to the Board an idle ceremony, which well 
might be dispensed with; although they had no recollection or be- 
lief, that the Board had formally resolved to dispense with it. But 

C a) See page 29. fbj See page, 129, fcj See page 129, and the tes 
timony of Mr. Finley, page 119, 



176 

what did this necessarily imply ? Most certainly that stock or 
funded debt, to the full amount of the loan at its par value, was ef- 
fectively pledged, and placed in the possession and power of the 
bank. Here then we have the key which unlocks this whole mys- 
tery of fraud, and exposes to full view the trick by which the Board 
was imposed on. The Cashier was the keeper of the stock. It 
was, by the express terms of the resolution, in his hands that the 
stock was to be placed. He and the President, as executive 
officers of the Branch, were to see that in making the pledges, 
or hypothecations, all the requisite formalities w T ere fulfilled.— 
These matters never appeared in the books ; as is fully proved by 
the present Cashier and other witnesses. 

When therefore it was suggested to the Board, by whomsoever 
the suggestion was made, that to bring stock notes before it for 
discount was an idle ceremony, I ask again what did the sugges- 
tion necessarily imply ? Most certainly that the President and 
Cashier would do their duty ; that no loans would be granted with- 
out an effective pledge of stock or public debt, regularly made, to 
its full amount at par ; and that if more than par should be applied 
for, notes for the excess would be laid before the Board, for its 
sanction. 

It is impossible that any thing else can have been understood, 
or intended : and the fraud of the Traversers consists precisely 
in this ; that they took advantage of this understanding and this 
confidence, to do that which it is impossible to imagine the Direc- 
tors would have permitted, had they been apprized of it : to make 
loans to themselves to an enormous amount, without any pledge of 
stock whatever, and without stock to pledge to one half of the a- 
mount : indeed, as far as appears in proof, without any stock at all. 

This is the very essence of fraud; which always commences its 
operations by endeavoring to inspire confidence, where it does 
not already exist, by means of which its intended victim may be be- 
trayed. When the vilest and most detestable of all frauds, the se- 
duction of female innocence, is meditated, how does the betrayer 
commence his attack ? By inspiring the unhappy object with con- 
fidence in his honor, in his affection. Under the disguise of hon- 
ourable love he steals first into her heart, and then into her arms ; 
and when his infamous purposes are accomplished, abandons her 
to dishonour and a broken heart, if not to a Brothel first and then 
to an Hospital. 



177 

These betrayers, indeed, had not the trouble of inspiring the 
Directors with confidence. It already existed. It was produced 
by their previous conduct in life ; and had been necessarily con- 
firmed by their appointment to stations implying peculiar trust. 
But they took advantage of its existence, and abused it to perpe- 
trate their fraud ; of which it was rendered the chief instrument. 

And did they confine themselves to the mere abuse of the confi- 
dence thus created ? Far from it. They went on to assert a pos- 
sitive and wilful falsehood, with the same fraudulent views. How 
many of the Branch Directors, men of the highest honor and intel- 
ligence, have informed us on their oaths, that these Traversers de- 
clared over and over to the Branch Board, that the whole business 
of stock discounts had been confided to them, as executive business, 
by the Parent Board ; and that the Branch Board had nothing to 
do with it ? I need not repeat the testimony of these witnesses, 
which has-been fully taken down by the members of the court, and 
is fresh in their recollection. Was not this an absolute and wilful 
falsehood ? Can it be doubted, or will any attempt be made to de- 
ny it ? None has been made, and we all know that it could not 
have been made with success. Here then is the direct "suggestio 
falsi," which the law establishes as the surest criterion of fraud, 
and indeed its chief ingredient. 

Why was this wilful falsehood told and repeated, till it gained 
universal belief at the Branch Board ? The object is plain. The 
first fraudulent device was to represent, that as the security of 
stock loans consisted in the stock pledged, and the President and, 
Cashier would of course do their duty, by taking care that it was 
properly pledged, it would be an useless ceremony to bring such 
loans before the Board. Here the intention to discount, and the 
practice immediately adopted of discounting, on pretence of pledg- 
es of stock when none was in fact pledged, were carefully kept 
out of view, and amount to a very gross and palpable instance of 
the "suppressio veri," one of the chief ingredients and proofs of 
fraud. The fact suppressed and carefully kept out of sight was, 
that no stock whatever was pledged. Had the Directors susped> 
ed this truth, thus suppressed, it cannot be doubted that they would 
have immediately interfered, and put a stop to the practice. — ■ 
There was a just apprehension that they would at length suspect 
it : that the truth would at length leak out, and come to their 
knowledge. This danger was to be averted; and for that purpose 
recourse was had to the direct and wilful falsehood, that the Pa* 



178 

rent Bank had withdrawn this whole business of stock loans from 
the Branch Board, and transferred it as executive business to the 
President and Cashier. 

The indictment charges the Traversers, with employing fraud- 
ulent devices and indirect means, to accomplish their purpose of 
getting the money of the Bank into their hands. Can a charge be 
more fully supported ? Here we find both species of fraud em- 
ployed : the truth is suppressed, in a most material circumstance, 
for the purpose of deceiving the Directors ; and a most gross and 
wilful falsehood is told to them, and constantly repeated, in order 
to keep up the deception, and prevent discovery. 

We are told with great emphasis by my learned friend, and I 
think not without some air of triumph, I will not say of exulta- 
tion, that this loan of $540,000 as well as all the rest, was put on 
the books ; which were twice a week laid before the Board, and 
fully disclosed the whole affair. And how, he asks, can the prer 
tence of deception be set up, in the face of this admitted fact ? 
But did these books disclose the whole matter ? Or were they, 
on the contrary, rendered accessary to the fraud and deception r 
These are the questions which my learned friend must permit me 
to discuss with him. 

First, did these books disclose the whole matter ? They no 
doubt disclosed the fact, that such notes, to such amounts, of such 
dates, payable at such periods, and drawn and endorsed by such 
persons, had been discounted for the Traversers, as stock notes. 
But will my learned friend say that this was the whole matter r 
Will he say that the security on which these loans purported to be 
made, on which alone they rested, that the actual existence and 
extent of the pledge, was no part of the matter ? Will he say that 
it was no part of the matter how much stock these parties had to 
answer the loans, or whether they had any ? Or whether what they 
might have was or was not really pledged ; so as to give the lend' 
ers an effective lien on it, for the debt? Surely he will not say 
this; and yet not one of these particulars, thus manifestly indis- 
pensible to the matter, thus constituting its most material part, in- 
deed its very essence, was disclosed or could be learnt by the 
Books. They were wholly silent on all these heads. This is ful- 
ly and undeniably proved, by the present Cashier and the Clerks, 
and by the books themselves now lying before me, and open as 
they have been for a fortnight, day by day, to the inspection of the 
Traversers and their counsel. They simply speak of the notes as 



170 

stock notes ; but make no mention whatever of the stock pledged ; 
its nature, its amount, or the manner in which the pledge was se- 
cured. All these matters were within the sole cognizance of the 
Traversers, Buchanan and M'Culloh, as President and Cashier ; 
and to the latter exclusively belonged the custody of the Stock it- 
self. All this is undeniable. 

Now let us ask in what did the malversation consist ? Not 
surely in making the loans, without consulting the Board. That 
would have been an irregularity indeed ; but a perfectly harmless 
irregularity, had every thing else been right. But in making them 
without an adequate pledge of stock, or rather without any pledge 
at all. And was this fact disclosed, by the production half week- 
ly of the books ? Most certainly it was not : nor was any thing 
disclosed, by which an enquiry into the fact was likely to be sug- 
gested. Here then is a complete and most artful suppression of 
the truth, disguised under the ostentatious and studied appearance 
of candour. 

And lest enquiry beyond the books should happen to be made, 
so as to lead to a discovery of the truth thus suppressed, a studied 
falsehood is invented and carefully inculcated : that the Branch 
Board had nothing to do with stock loans ; of course nothing to do 
with the security on which they professed to have been made, its 
extent, or its reality ; all which it was alledged, had been expressly 
confided by the Parent Board, to the President and Cashier.— 
Thus these persons, like the lady in the romance, but with far dif- 
ferent views ; 

" Turned all enquiry light away." 

Had the matter stopt here, there would still have been a com- 
plete and most palpable " suppressio veri" and " suggestio falsi ;" 
and consequently a fraud, according to the most formal definition. 

But it was very far from stopping here- The production itself 
of these books, so much and so triumphantly vaunted, imported 
necessarily an absolute falsehood. 

This is the second point that I am to discuss, with the learned 
Counsel for the Traversers 

These books speak of stock notes: of loans on stock: of notes 
discounted on stock. Now what do these terms import ? What 
is implied by this affirmation, that notes have been discounted on 
stock ? Certainly nothing less than this ; that the notes were dis- 
counted according to the known regulations of the Parent Board; 
that is on a bona fide and effective pledge of stock, deposited in 



180 

the Branch, regularly hypothecated, and in the possession of the 
Cashier. 

I ask if they did not further import, that the loans thus report- 
ed were to no greater amount, than the par value of the stock thus 
hypothecated ? They must have been understood as importing 
this fact also ; because the regulation of August 16th 1817, respect- 
ing loans on stock beyond par, positively enjoined that in case of 
any such excess, there should be notes for the amount of the excess 
at least, with " two approved names :" that is, with a drawer and 
endorser approved bj the Board. As therefore the Board knew 
that no notes for any excess above par, had in these cases been 
submitted to them, what I ask were they to conclude ? What was 
the plain language of the books, taken in connexion with this cir- 
cumstance ? Certainly this, that there was no excess : in other 
words, that stock was not only pledged in a regular and effective 
manner, but to the full amount at par,, of all the loans. I ask if it 
was possible to understand them in any other manner ? 

In whose care and custody then were these books ? In those 
of the President and Cashier. Who produced them, knowing all 
these circumstances, and the false and fraudulent statement which 
they thus imported ? The President and Cashier. Therefore the Pre- 
sident and Cashier wilfully and fraudulently affirmed to the Di- 
rectors, the falsehood which the books as they well knew import- 
ed ; and thus fixt the key-stone to this arch of fraud and imposition. 
Is it possible to believe that if the Directors had not been thus de- 
ceived, they w r ould have acquiesced in these transactions ? That 
they would not have remonstrated, first to the parties and then to 
the Parent Board, against such enormous abuses ? It is impossi- 
ble, I presume, to have any doubt upon this head. Their silence 
and acquiescence were obtained, by means of this series of studied 
and artful frauds, and false pretences. It was by means of them 
that in the first instance the fraud was perpetrated. Consequent- 
ly the indictment, charging a conspiracy to get the money of the 
bank into their hands, by false and fraudulent devices and indirect 
means, is fully supported by this evidence. 

In using the terms falsehood, fraud and imposition, may it 
please your honors, it is by no means my wish to wound unneces- 
sarily the feelings of these persons, or of their friends or connex- 
ions : but I must call things by their names ; and in applying the 
proof to an indictment which has been found by a Grand Jury, and 
which charges fraud as part of the crime, I must speak of fraud, 



181 

and must endeavour to shew, from the proof in the case, that it 
has been committed by the persons indicted. 

It is urged in defence of these persons, that the Board might 
at any time have found out the truth ; and that if they did not, they 
and those who suffer with them, must impute the consequences to 
their own supineness and improper confidence. What is this but 
saying, that fruud is innocent because it is successful ; and that 
when a*man is cheated, he must blame not the dishonesty of the 
cheat, but his own credulity or folly. This is of a piece with all 
the rest of the defence. When an incautious young man is in- 
ticed into a gaming house, and stript of his money by a combina- 
tion of gamblers, by the aid mayhap of false dice marked cards or 
intoxication, it is no doubt his own folly : but are they less cheats, 
because he is a dupe ? He confided in them foolishly. True ! but 
therein consists their fraud : in taking advantage of his foolish con- 
fidence, to cheat him of his money. When a country Bumpkin is 
surrounded in the market or the street by a group of sharpers, in- 
veigled into a tavern, made drunk under pretence of friendship or 
good fellowship, and cheated of his horse under pretence of a swop, 
it is no doubt his own fault to go into a tavern, and drink with 
persons whom he does not know: but are they less knaves, be- 
cause he has foolishly been persuaded to act towards them as if 
they were honest men? In truth, may it please your Honours, fraud, 
as I have already had occasion to remark, always implies confi- 
dence, and consists in its abuse. A man cannot be cheated, until 
he confides. When a fraud on him is meditated, if his confidence 
be not already possessed, it must be obtained; and accordingly the 
first operation of every cheat, is to make sure of the confidence of 
his intended dupe. But if all this were otherwise, what impro- 
per or imprudent confidence can be imputed to these directors ? 
Was it not natural that they should confide in the President and 
Cashier; to the extent at least of believing, that they would not 
systematically represent wilful falsehoods : that they would do 
their duty faithfully, in the high and responsible stations in which 
they had been placed, precisely because they were confided in, 
and were judged worthy of all confidence ? In my mind this con- 
fidence, so naturally placed, and unfortunately so much misplac 
ed, as the event has proved, enhances instead of extenuating the 
guilt of the traversers. 

It has been contended that this note of £540,000, discounted 
on the 12th of August, 1817, was sanctioned by the Directors : and 



182 

Mr. Finley, one of the witnesses for the Traversers, says that he 
has some recollection of such a note having been laid before the 
board. I have no doubt that Mr. Finley states frankly what he 
recollects, and nothing but what he recollects. He is not very 
clear or positive about this fact: but if his recollection be correct, 
I cannot perceive how it makes the case better. If this note of 
§540,000 were offered to the Board of Directors, it must have been 
offered and represented as a stock note; that is as a note secured 
by an actual pledge of stock ; and we know that this representa- 
tion was absolutely false. It has no endorser, therefore it must 
have been represented, as a note secured by an actual and effective 
pledge of Stock at par. But we know that if these parties had 
any Stock in the Branch Bank, at that time, which does not ap- 
pear, it was only 2558 shares; far short of the amount of the note 
at par, or even at 25 per cent advance. Thus it is clear, that 
whether the note was laid before the directors or not, they were 
equally imposed on, and the fraud in obtaining it was the same. 

The indictment charges that the parties conspired to get this 
money into their possession, by false, fraudulent and indirect 
means, "with intent to retain it two months without paying inter- 
est." It will hereafter be a question, in the progress of the case 
how far this allegation as to the intent, is material to be proved : 
but admitting it for the present to be material, we are to enquire 
what is its true construction ? Does it mean that the parties did 
not intend to pay interest on this sum at all ; or that they did not 
intend to pay it in the usual and regular manner ? 

The object of a Bank is not only to receive interest, at some 
time or other, on the money which they lend, but to receive it at 
stated and short periods, so as to constitute a revenue for the 
Stockholders. This object must always be defeated, in a grea- 
ter or less degree, by delaying in paying the interest: because the 
Stockholders are deprived so far of the enjoyment of their re- 
venue, and consequently are injured so far by the fraud. It 
v/ould seem, consequently, to be a reasonable construction of this 
allegation in the indictment, to consider the term " without paying 
interest," as applying to the time when the note was to be paid, 
or renewed ; and consequently as meaning " without paying inter- 
est at the end of two months." 

If so, this note supports the indictment, in all its parts. It 
fell due, as has been seen, on the 13th of November, 1817 ; (a) and 

faj See Page 29, 



183 

was then renewed at 90 days, with the whole interest included.-— 
Consequently the interest on the renewed note was not paid, at 
that time. On the 14th of February, 1818, this renewed note fell 
due, when at least the interest included in it ought to have been 
paid; but it was renewed again, for 90 days, including the whole 
interest on the first renewal, and a part of that on the second. And 
it was not till the 17th or 18th of May, 1818, that the note in- 
cluding these two additions of interest, was finally paid. Thus 
the interest on the first renewal, which ought to have been paid 
on the 13th of November, 1817, when the renewed note was made, 
or at all events on the 14th of February, 1818, when it was again 
renewed, was fraudulently and without the consent of the Bank 
withheld, till the 17th of May, 1818. Consequently, the stock- 
holders were fraudulently deprived of their revenue during this 
period, without their consent, and without any equivalent. 

And it must not be forgotten, that as to the renewals of this 
note in November 1817^and February 1818, there is no pretence 
that they were brought before the Board, or in any manner known 
to the Directors. 

In relation to the combination, or in technical language the con- 
spiracy, which is charged by this indictment, and indeed makes 
the gist of the offence, it is proved abundantly, by all the circum- 
stances and testimony in the case. The great mass of the stock 
notes, amounting to $1,542,126 12, is clearly proved to have been 
discounted by the Traversers, Buchanan and M'Culloh, for their 
own benefit and that of their associate George Williams ; and it is 
in full proof that the two first acted in concert, in all the frauds 
falshoods tricks and concealments which were practised in relation 
to the matter. Indeed this is not denied ; nor is any question 
raised on this point, as relates to the Sl>542,136 12. As regards 
the note now under consideration, that of August 12th 1817, for 
8540,000, with its renewals, the proof is equally complete. It is 
clearly admitted, on all hands, that the renewals were not brought 
before the board. They were certainly made by Buchanan and 
M'Culloh, acting in concert with each other ; which is the precise 
definition of conspiracy. And as to the first note, that of August 
12, 1817, if it was brought before the Board, it was accompanied 
by false representations, which deceived and imposed on the Di- 
rectors, and were the joint work of these two persons : and conse- 
quently amount to full proof of the conspiracy. 



184 

£t is however contended on the part of the Traversers, that the 
intention of the parties to pay the interest, included in the differ- 
ent renewals of this note, of which intention its actual payment is 
relied on as the strongest proof, constitutes a complete defence 
against that part of the indictment, which charges an intent to keep 
the money two months without paying interest. I have endea- 
voured to shew, that according to the true construction of the in- 
dictment, it does not charge an intent to keep the money without 
ever paying interest, but without paying it at the times when it re- 
gularly became due: That is at the end of the two months, at 
furthest. If I am right in this position, there is an end of the ques- 
tion, I have also stated, and shall hereafter endeavour to shew, 
that this allegation about the interest, is wholly immaterial, and 
need not be proved. In that case also, there is an end of the ques- 
tion. But admitting both these positions to be incorrect, and con- 
sequently that the indictment fails, so far as relates to this note of 
8540,000, the case made is no better : for in the great mass of stock 
notes of 8 1,542,136 12, there is a large amount of interest included, 
which never was paid, and much which there is the utmost reason 
to believe that the parties never intended to pay. Indeed there is 
a large sum of the principal which it is quite clear that they never 
intended to pay ; as I presently shall have occasion to shew. 

There is also a very large sum due for interest on these notes* 
besides that which is included in them. 

By recurring to the testimony of Mr. White, (a) it will be 
found, that on the 1st December 1817, one of these spurious stock 
notes, which had been discounted on the 30th August 1817, for S. 
Smith & Buchanan, to the amount of 8280,000 was renewed for 
8285,000 : Thus including §5,000 of interest. It was again re- 
newed on the 3rd of March 1818 for 8288,000; including of course 
a further sum of $3,000 f or interest. This made 88,000 of inte- 
rest. 

By the same testimony it appears, (b) that on the 6th of De- 
cember 1817, two notes which had been discounted for these per- 
sons, one for 8165,000 and the other for 47,000, making together 
§212,000, were renewed for 8215,000 ; including of course 83,000 
of interest, which made 81 1,000 in all: and that on the 9th of 
March 1818, this last note was further renewed for 8217,000, in- 
cluding 82,000 for interest, and making for the whole interest thus 
far included, a total of 813,000. 



fa J See page 30. fbj See page S% 






18& 

The same testimony shews, (a) that on the 22nd November, 

1817, another note for §215,000, which had been discounted for 
these persons, was renewed for 821 8,000, making an addition of 
$3,000 for interest, and raising the amount of interest retained up 
to that time, to the sum of SI 6,000. On the 23rd of February 1818, 
this last note was again renewed, with the addition of 832,000, and 
became a note of 8250,000 (b). And in the renewal on the 26th. 
of May '818, of a large mass of notes amounting to 8358,500 (c) 9 
a sum of 8 1 2,000 was added so as to raise the renewed note to 
8370,500 ; and it cannot be doubted that in botli instances, all the 
interest on the renewed notes was included in these additional 
sums ; or which is the same thing in effect, was paid out of them. 
The interest on these two renewed notes, which were each for 
60 days, amounted to something more than 86,000. But taken at 
86,000, and added to the interest before included, it makes a total 
thus far of 822,000, for interest unpaid. 

It also appears from Mr. White's testimony, (d), that on the 
2d of November, 1818, 87000 were added for interest, to the notes 
renewed on that day, for James W. M'Culloh. This raises the 
whole amount of included interest to 829,000. And the same e- 
vidence shews, (e) that after the general renewal and general ar- 
rangement of November 2d and 12th, 1818, supposing all the in- 
terest on that renewal except the 87000 to have been then paid, 
four months interest became due on this mass of debt, which the 
three associates directed to be equally divided among them, and 
charged to their separate accounts. This interest amounted to 
832,578 86 ; and added to the sum included before November 2d, 

181 8, makes a total of 861,578 86 for interest which remained un- 
paid on these notes, or was included iii them, when they were final- 
ly protested on the 10th of July 1819. 

It is to be remarked that the whole of this interest is effective- 
ly due at this moment; and is absolutely lost by the insolvency of 
the parties. They indeed made payments, as Mr. White has prov- 
ed, (f) to the amount of about one third of their stock note debt; 
and although in a strictly legal view the payments may be applica- 
ble in the first place to the interest, yet it is clear that whatever is 
applied to interest must be withheld from principal ; and conse- 
quently that the debt now unpaid and desperate is larger, by the 

faj See page 31. fbj See pages 31—32. fcj See Page 32. CdJ S^e 
page 36. f O See page 40. f/J See page 112. 

2d 



186 

precise amount of the interest included in the notes, or growing 
due on them after the renewal and consolidation of November 2d, 
1818, than it would have been had no interest been retained. 

Now, may it please your honours, although it is very certain 
that a man may intend to pay, and yet be afterwards deprived of 
the power, by events which he did not foresee or expect ; yet I ask 
whether under any circumstances he can be allowed, on any prin- 
ciple of law or common sense, to set up this intention however 
clearly proved, as an excuse in law for getting the property of an- 
other into his possession, by criminal means ? If a man borrow 
my money, or contract a debt with me by the purchase of my pro- 
perty, he may be mined by paying the debt, or I by his failure to 
pay : but he is not guilty of any thing more than imprudence, if he 
intended to pay, which must be presumed till the contrary appears : 
and by shewing that he had a fair prospect of being able to pay, 
he may even acquit himself of the charge of imprudence. But 
when was it ever heard, that a man who had cheated me out of the 
possession of my money or my property, by false tokens or any 
other false device, or had obtained it by imposition or fraud, was 
allowed to set up an intention to restore it, as a defence under an 
indictment ? What would be the consequences of such a doctrine r 
The crime lies in obtaining the possession, by means which the law 
forbids. Here the law, for the wisest purposes, lays its finger, and 
pronounces its interdiction. If a man should forge my note or my 
check, is it a defence to say that he intended to pay the note before 
it became due, or to replace in a short time the money drawn out 
by the forged check ? Is it a defence to shew that he actually did 
take up the note, before I ever heard of it ; or replace the money 
before I knew that it was drawn out? Certainly not. And where 
is the difference, in principle, between those cases and this ? Is 
it not perfectly clear, undeniably proved, that these persons got 
possession of the whole of this enormous sum of SI ,542,136 12, 
by tricks, falsehoods and imposition, practised on the Bank of 
the United States, in the persons of its agents the Directors of 
the Baltimore Branch? Were not these Directors told, in order 
to accomplish this monstrous fraud, that the Parent Board had 
confided the power of discounting on stock, exclusively to the 
Traversers Buchanan and M'Culloh? Was not this a clear and 
wilful falsehood? Were not the same Directors made to be- 
lieve, for the same purpose, and deceived into the belief by the 
statement and representation of these notes on the books as ** stock 



187 

notes/' that stock was actually and regularly pledged, for their 
payment? And was not this also a clear and wilful falsehood? 
No doubt is or can be entertained, by any body, who has attended 
to the evidence, about the existence of these two falsehoods ; or 
about the fact, that if the Branch Directors had not been imposed 
on by them, they would have nipt this peculation in the bud and 
- prevented the withdrawal of this money from their vaults. Of this 
nobody, who has heard the case, does or can doubt. It is therefore 
manifest, that this money was obtained by trick, imposition and 
fraud. It is equally clear, that the purpose of withholding the in- 
terest for an indefinite time, till it should suit the convenience or 
whim of these persons to pay it ; till they might be able to spare 
it from their speculations, the embellishment of their town or 
country residences, or the support of their equipages and their 
tables ; was accomplished by precisely the same imposition conceal- 
ment and fraud ; for it is quite clear that if the Directors had not 
thus been imposed on, they would have compelled these persons 
by the terrors of a protest, to pay the discounts on the renewals of 
their notes, while they yet had the means, instead of adding them 
to the debt, by including them in the renewed notes. 

Hence it is perfectly clear, upon the best established principles 
of law, that having enabled themselves by falsehood concealment 
and imposition, to retain tins interest, and to get and preserve the 
opportunity and the means of retaining it, they cannot be allowed 
to excuse themselves, by shewing, if they could shew, that it was 
their intention to pay it at some time or other, when it might hap- 
pen to suit their convenience and their inclinations. 

But they could not shew it, if the law would allow them to do 
so. The contrary is manifest ; as I now proceed to prove. I pro- 
ceed to prove, that as to any considerable part of this interest, they 
never intended to pay it, 'any more than the principal. 

And I will remark in the first place, that the studied omission 
of a man to do that which he ought to do, when he has it fully in 
his power to do it, is very strong evidence, if not the strongest, of 
his intention not to do it at all. Now what was the situation of 
James A. Buchanan, when he retained and added to the mass of his 
debt, or rather of the common debt of the association, a large part 
of this interest ? 



18B 

€tae addition, that of 85000, was made on the 1 st of December 
1817, (a) the very day when United States Bank stock, as appears 
by, the testimony of Mr. Colt, (b) was selling at g 150 per. share. 
This association had then purchased from Dennis A. Smith alone 
19,940 shares, at an average of less than 8130; (c) and taking 
the average at 8130, their profits amounted to 8398,000. Stock 
afterwards rose higher; for on the 30th of December, 1817, as ap- 
pears by the testimony of Mr. Colt, (d) it sold at 8157 54, on a 
credit of 75 days ; and so confident were they in the success of 
their speculation, that in the course of the same month, December 
1817, they made a further purchase from Smith of 12,000 at 8155 
per. share, for which of course they paid, and therefore certainly 
had the means of paying, no less a sum than 81,860,000. And 
yet with all these vast gains, and these enormous means at their 
disposal, they did not choose to spare 85000, for the interest on 
the renewal of their note on December 1st, 1817, but added it to 
the debt, and it remains at this moment unpaid. What clearer 
proof that they never intended to pay it ? 

Under circumstances equally favourable to their ability to pay 
interest, they made other additions from time to time. One of 
83000 on the 22d November, 1817; (e) one of 83000 on the 6th 
December, 1817; (e) one on the 3d March, 1818, (e) for 83000; 
and one the 5th of May, 1818, (/) for 82000; amounting in the 
whole with the 85000 first mentioned to 816,000: not to speak of 
the 86000 and upwards added on the 23d of February, (e) and the 
26th of May, in the same year, (g) 

Thus we see that while these persons were in the highest credit, 
and disposing of enormous sums for the purpose of new specula- 
tions, they withheld the payment of interest on these notes, to the 
amount of 822,000, and deliberately added that sum to the mass 
of their debt, without the least provision for its payment. What 
clearer proof, I ask again, that they never intended to pay ? 

But my learned friend, who conducts their cause with so much 
ingenuity and zeal, has a triumphant answer to this objection. He 
tells us that they furnished evidence of this debt for interest, by 
including it in their notes ; and as they then considered their spe- 
culations as successful and consequently believed themselves to be 
rich, their conduct in thus furnishing evidence of this additional 
debt, is clear proof of their intention to pay. This is the argu- 

faj See page 30. f b J See P a £ e 97 - C C J See P a £ e 13 ' r - 

\d) See page 98. (e) See page 31. (/) See page 30, ($•) See page 32: 



189 

merit which, according to him, sets refutation at defiance ; and 
shakes the indictment to its foundation. 

Be it so: I will not stop to shew the infirmity of this argument. 
Let us rather inquire how they acted, when they knew that their 
speculation had failed ; and that they were in consequence, irre- 
trievably and hopelessly ruined. 

It appears from the testimony of Mr. Colt, (a) that Bank Stock 
was at its greatest height in December, 1817, and January 1818 ; 
during which months it fluctuated between SI 52 and §146. On 
the 11th of March it had fallen to S 145. On the 1st of April it 
had risen to SI 47. On the 3d it fell to $143^ : after which it con- 
tinued to fall progressively, with some slight fluctuations, till the 9th 
of November 1818, when it had sunk to SI !2> On the 13th of No- 
vember it fluctuated from SI 12 to 1 15. • If we suppose that on the 
12th it stood at 113, we shall be as near the truth as we can ex- 
pect to come. But for greater certainly let us take it at 114 ; and 
then enquire how these parties stood, and knew themselves to 
stand, on the 12th of November 1818, when the final arrangement 
and renewal of their stock debt took place, and exhibited the a- 
amount of 81,542,136 12 (6). 

They had made three successive purchases of stock, from Den- 
nis A. Smith, one of 7404 shares in April 1817, at 19 and 20 per 
cent advance ; one of 12,536 in June 1817 at 36 per cent advance, 
and one of 12,000 in December of the same year at 55. But a 
small part of the first purchase, 2000 shares only, was at 19 ; and 
taking the average on these four prices 1 9, 20, 36 and 55, with a 
view to the quantities of stock purchased at each, it gives us about 
SI 39 40 per share, for the average cost of the whole quantity. — 
The three purchases amounted to something more than 31,900 
shares. Taking that as the quantity for the sake of round num- 
bers, and SI 39 40 as the average price, the whole cost will be 
84,446,860. 

At SI 14, the price to which they had fallen on the 12th of No- 
vember 1818, these 31,900 shares were then worth S3,63 6,600 ; 
being a loss of S8 I 0,260 on this part of their speculations alone. 

We know that by the paper x (c) exhibited at Philadelphia in 
March 1819, they stated the whole number of shares which they 
then held, and had held for a considerable time, to be 47,398, or 
15,490 in addition to those purchased from Dennis A. Smith. We 



Go) See page 97, 98. (6) See pages 32, 36 and 38. (c) See page $1, 



190 

have no means of ascertaining when or how they obtained these 
15,490, or at what price; but if we suppose that they cost on an 
average SI 20 there is no reason to believe that we shall place them 
too high. At this rate their aggregate cost would be $1,858,800. 
They like the rest had sunk progressively, on the 1 2th of Novem- 
ber, 181 8, to SI 14. The worth of them at this price was, on that 
day, 81,765,860 : and here is another loss of $92, 940, which added 
to the former of $8 10,260 on the purchases from D. A. Smith, 
makes a total of $903,200. 

To this must be added commissions, brokerage, interests paid 
beyond the amount of dividends received, and other incidental 
charges ; the whole of which their counsel, I think, estimated at 
$200,000, an estimate which no body acquainted with such mat- 
ters will suppose to be too high. Take them at this sum ; and we 
have an aggregate loss on the 12th of November of $1,103,200. 

And let it be remembered, that the fall in stock which produc- 
ed this enormous loss on the 12th of November 1818, was not sud- 
den, from some alarm which might soon pass away, and leave the 
hope more or less rational of a reflux of the tide : It was progres- 
sive and regular ; commenced as we have seen early in April 1818, 
and went on with great steadiness through seven successive months 
till it reached the stage of depression at which we find it on the 
12th of November 1818, and which was by no means its lowest 
stage : for it continued to sink, as all men of sense and know- 
ledge must have forseen, till at length, as every body knows, it 
came down to par and even below, some time in the spring of 1819. 

We now see how these persons stood on the 12th of November 
1818 ; and how it is perfectly clear that they knew themselves to 
stand : for none knew better than they, the history and actual 
state of the stock market. We are now ready for the inquiry., 
how they acted in this state of known, irretrievable and desperate 
ruin. 

By recurring to Mr. White's history of the stock note opera- 
tion, (a) as relates to James W. M'Culloh's part of the mass of 
notes renewed on the 12th of November 1818, we find that $7000 
were included for interest on the renewal, and added to the mass 
of principal already so enormous. This was done with the conniv- 
ance and aid of James A. Buchanan, as abundantly appears by the 
whole transaction. It was done for the mutual benefit of the three 

(a) See page 36. 



191 

associates, James A. Buchanan, James W. M'CulIoh, and George 
Williams : for in their paper a% (a) exhibited at Philadelphia in 
March 1819, they represent the whole of this debt as a joint debt, 
and the whole of the stock as their joint property: and as a joint 
debt they afterwards divide it equally among themselves, and un- 
dertake to pay in equal portions of 8300,000 each, the part of 
it that remained due, after the surrender of the stock which they 
jointly held. Here then is complete proof of combination, between 
Buchanan and M'CulIoh ; the active agents in this withholding of 
interest to the amount of S7000, on the 12th November 1818, 
which they knew never would or could be paid, and which of 
course they never intended to pay : for it is an absurdity and mock- 
ery to pretend, that they intended to do that which they perfectly 
well knew at the time, that they never would be able to do. 

What then becomes of this so much vaunted intention to pay 
the added interest, which we have been told overthrows the prose- 
cution entirely ? 

Having been incidentally led to mention George WiUiams, who 
is not now on his trial, and into whose conduct, except so far as it 
is connected with that of the other Traversers, Buchanan and M'- 
CulIoh, we have no right at present to enquire, I think it proper to 
remark, that in this point relating to the interest, as well as in ma- 
ny others, his case is most advantageously distinguished from that 
of his two associates. It does not appear that any interest was in- 
cluded in his part of the stock notes nor indeed that he had any ac- 
tive or direct agenGy in any of the very reprehensible transactions, 
with which he suffered himself to be connected, or was apprized of 
the means by which they were accomplished. Indeed there is evi- 
dence, that when he became acquainted with the fact, that notes 
with his name on them had been discounted without the know- 
ledge of the Branch Board, he expressed his surprise and dissatis- 
faction at such conduct (b). 

To return from this short digression, which I thought due t© 
justice, I beg leave to recal the attention of your Honours to the 
augmentation of debt by including interest, to the amount of $7,000, 
which took place en the 1 2th November 1818, at a time when 
these persons knew themselves to be insolvent for one million of 
dollars at teast ; and I ask how this retention of interest under such 
circumstances, is to be reconciled with that " intention to pay," on 
which my learned friend rests, and must rest, the whole defence 



(a) See page 91. (ft) See page 120, 



198 

of his clients? Perhaps he will tell me, as he may do with some 
plausibility, although I do not recollect to have heard the argu- 
ment advanced, that the debt had already been contracted, at a time 
when the parties expected to pay, and when circumstances autho- 
rized the expectation ; that the interest became due without any 
new act of the debtors; that being; rendered unable to pay it all, 
through the change of circumstances which had produced their ruin, 
they were compelled to retain this part ; and that in giving their 
note for it, by including it in one of the renewed notes, they did 
all that was then in their power. 

I will not stop to examine and expose the unsoundness of this 
argument ; which although it might afford some extenuation in a 
moral point of view, is at war with every legal principle. I again 
say, "be it so:" and let us next enquire how these persons acted, 
where no previous debt existed ? Whether they kept their hands 
out of the coffers of the Bank, after they knew that their specula- 
tion had totally failed, and that consequently they were insolvent 
to the amount of a million at least? 

Your Honours will recollect that on the part of the prosecution 
there was given in evidence, a list of stock notes as taken from the 
books of the Office of the Bank of the United States at Baltimore, 
on the 13th of November 1818, (a). 

I now hold the paper in my hand. It shews, (6) that on the 
13th of November 1818, James W. M'Culloh stood indebted on 
the books of the Bank, as a borrower on stock security, to the 
amount of §561,201 01 and S. Smith & Buchanan on the same ac- 
count, for §850,801 77. The Court will please to note the epoch 
and the sums. 

There was also given in evidence for the prosecution, "a list of 
loans upon stock," which appear by the Books to have existed at the 
Office of the Bank of the United States at Baltimore, on the 8th of 
March 1819.(c) By this list which is also before me, it appears that 
James W. M'Culloh was on that day a debtor to the Bank on stock 
loans, to the amount of §592,201 01 (d) ; exceeding by §31,000 the 
amount for which he was indebted on stock loans, on the 13th of 
November 1818. 

It also appears by this document, that on the 8th of March 1819 
S. Smith and Buchanan were debtors on stock loans, to the a- 
mount of §870,801 77 more by §20,000 than the amount of their 
stock debt, on the 13th of November 1818. 



(«) See page 68, (£) See page 7h (c) See page 77 , (d) See page 80, 



193 

By recurring to these two documents, and to Mr. White's ex r 
planation and detail of the stock notes of these persons, (a) we 
shall find that James W. M'Culloh's part of- this augmentation, 
amounting to S3 1,000, was effected by the discount of two notes; 
one of which appears in the great stock note operation detailed by 
Mr. White, and the other does not. 

The first of these two notes, that which appears in the acconnt 
of their stock debt, on which they made their settlement with the 
Bank, is for §20,000. It bears date on the 26th of December 1818, 
and constitutes class No. 17, in the detail of M'Culloh's stock 
notes.(6,) It was discounted for him on the 14th of January, 1819, 
and appears from the list of 8th Viarch 1819, (c) to have been paya- 
ble on the 29th in March of that year, consequently it was origin- 
ally a note at three months. 

Of the second of these notes, which is for §11,000, and was 
payable on the 31st of March 1819, no other trace appears than 
that which is found in this list ; and as no such note existed on the 
13th of November 1818,* when the first list bears date, it must 
have been first discounted subsequently to that day. Probably it 
was like that of §20,000, a note at three months, and having been 
payable on the 31st of March 1819, will in that case have borne 
date on the 28th of December 1818. If at four months, it must 
have borne date on the 28th of November 1818 ; and if at two, on 
the 28th of January 1819. Take it at any of these three dates, 
November, December or January, and the result will be very near- 
ly the same. 

Now let us pause for a moment and enquire what was the condi- 
tion of these parties, as relates to their means and prospects of pay- 
ment, when these new drafts were made upon the funds confided 
to their care ? To ascertain this point we must look to the prices 
of stock, at the time of these discounts : that is on the 14th of Jan- 
uary 1819, when that of §20,000 is proved to have been made; and 
on the 28th of November and December 1818, and of January 1819, 
on some one of which days the original note for §1 1,000, must have 
been dated, although it may have been discounted some days later. 
For this purpose we must again have recourse to the testima- 



* There was a note for §11,000 discounted for M'Culloh but was it of an. 
antecedent period, and was absorbed in the general renewal of November 
2d and 12th, 1818, See pages 35 and 36. 

(a) See page 32 and 36. (6) See page SQ (c) See page 80. 

86 



194 

ny of Mr. Colt, relative to the prices of Bank stock (a). It in- 
forms us that from the 1 1th of January 1819 to the 1st of February 
following, stock fell from $107 the share to $100 or par. There 
is no account of the intermediate prices. We cannot consequent- 
ly, place it higher on the 14th of January 1819, when the $20,000 
discount was made, than $107. On that day thererore the losses of 
these persons, on their stock speculations must have exceeded, one 
million four hundred and forty thousand dollars. According to 
the calculations which I have already submitted to your honors, 
their whole mass of stock, consisting of 47,398 shares must have 
cost them $6,315,600. At $107 the share it was worth $5,071,586 
on the 14th January 1819. This produced a loss of $ 1 ,244,074, to 
which add $200,000 for commissions, brokerage, excess of inter- 
est paid over dividends received, and other incidental charges, and 
we have an aggregate loss on January 14th 1819 of $1,444,074. 

Such was the state of their affairs when they thought proper to 
make a new inroad on the funds of the Bank to the extent of 
$20,000. Their situation was very nearly as bad on the 28th days 
of November and December 1818 and. January 1819, on one of 
which the other additional loan, that of $1 1,000, was made. This 
fully appears from the prices of stock on those days. On the 
28th of November it was at $114, on the 28th of December $110; 
and on the 28th of January probably at par, certainly not above 
$107. 

As to the additional $20,000 discounted for S. Smith and 
Buchanan, after the 13th November 1818, it does not clearly ap- 
pear at what time the loan was made. It must have been before 
the 8th of March 1819 ; because it appears in the list of that date, 
where t)\e note is stated to be payable on the 6th of July 1819, (b) 
The history given of it by Mr. White, from the books, is this. It 
was originally a note drawn by George Williams, and endorsed by 
S. Smith and Buchanan, and discounted regularly for them, as a 
note on personal security On the 3d of March 1819 it fell due, 
and was paid as a stock note. The money to pay it was obtained 
on the same day by discounting a note with the same drawers and 
endorers, and for the same sum, as a stock note, at four months ; 
which consequently became payable on the 6th of July 1819, and 
is the note mentioned in the list of March 8th in that year. 



C aj See page 98. (6) See page 



82, 






195 

This note, like all the others called stock Holes, was discouirted 
by the President and Cashier, without either the knowledge of the 
board, or any pledge whatever of Stock. The effect of the opera- 
tion was, to prevent the note which fell due on the 3d of March 
1819, from going for renewal before the board, where it might have 
encountered some difficulty in the circumstances which then ex- 
isted; and to blind the Directors a little while longer, by the ap- 
pearance of paying so considerable a sum as twenty thousand dol- 
lars. 

Let us now pause and recollect, that all these loans, the addi- 
tional §51,000, as well as the previous mass, were made to them- 
selves, by themselves, under pretence of special authority from the 
Parent Board, which they then affirmed to have been given to them, 
and have now made no attempt to prove, and of actual pledges of 
stock, which have been positively and clearly disproved. Let us 
also recollect that on the 13th of November 1818, after which time 
these loans of 820,000 and &3 1,000 were thus made to themselves 
under false and fraudulent pretences, these persons were insol- 
vent, and knew themselves to be so, hopelessly insolvent, to the a- 
mount of at least 81,000,000 : and consequently that when they 
committed these new depredations upon the funds confided to their 
care, they had not the slighest prospects or hope of ever being able 
to pay principal or interest, and consequently not the least inten- 
tion of paying either one or other : let us recollect all this, which 
is certainly and undeniably established by the proof; and we shall 
be fully able to decide upon the merits of a defence, which rests I 
wholly on an asserted intention to pay this very principal and in- 
terest. 

We shall be able indeed to decide upon a defence thus found to 
be rotten to the core : but how shall we characterize acts, which es- 
cape from the clearest definition and character of felony, merely by 
the aid of that technical principal of law which declares that a man 
cannot commit felony, by any disposition however flagitious, of mo- 
ney which the ower had placed in his bands* and which he therefore 
could not in a legal sense be said to "take." 

What, I ask, can be said by way of excuse extenuation or apo- 
logy, for this part of their conduct? Some indulgence may be 
claimed for them perhaps, while they were elevated and borne for- 
ward by the glittering bubble which they had so largely contributed 
to raise. Some compassion may be felt for their delusion, while 
by the aid of heated imaginations, they conceived themselves to 



196 

be under full sail wifn a steady and favourable breeze, to the fairy 
land of unbounded wealth, to some new Eldorado, where the streets 
are paved with ingots of gold, and the flocks glitter with diamonds 
hanging to their fleeces. Some aberration may perhaps be pardon- 
ed, or at least may be excused, in persons acting under such in- 
toxicating delusions. But when the storm had overtaken them, 
and their frail bark dashed against the rocks, had sunk forever, and 
left not a plank to assist them in swimming for their lives, will it 
be tolerated that they should tell us of their expectations still to 
make a prosperous voyage, on the anticipated gains of which they 
relied for means of repaying new appropriations of our property, 
made to themselves without our consent or knowledge, under cir- 
cumstances so desperate ? No may it please your honours ! Such 
an excuse, as relates to the last loans, would be mockery and insult 
added to crime ; and 1 think that I may venture to express the 
hope, nay the confident expectation, that we shall hear of it no 
more : That we shall no mdre be told of " the intention of these 
persons to pay the interest" upon their forced loans ; nor hear a- 
gain that in this allegation, respecting the intention of the Traver- 
sers to keep the money two months without paying interest, the in- 
dictment is not supported ? 

Neither, I presume, shall we again hear of their "intention to 
pay the principal," manifested by their giving their notes for it, and 
placing those notes on the books of the Bank. If it be true that a 
man cannot without absurdity alledge, that he intends to repay 
'money which when he takes it he knows that he never will be able 
to repay, it follows that no such allegation can avail him, in a court 
of justice; nor any where else, where law or common sense fur- 
nishes the rule of conduct and decision. 

I now proceed to other parts of the case ; which will be found 
as rotten every where, as we have seen it to be here. 

And here let me ask what is or can be said, in defence of this 
enormous peculation and fraud ; by which under pretences proved 
to be false and wilfully false, upwards of a million and an half of 
the money confided to the care of these persons, was withdrawn 
from the Bank by a combination between them and applied to their 
own use, without the least security for repayment of either prin- 
cipal or interest : withdrawn too as to a large part of it, at a time 
and under circumstances, which, as they well knew, precluded the 
possibility of paying either one or the other ? What, I repeat, 
is or can be said in defence of such conduct ? 



197 

These acts we are told, were done with a three fold vlew.-^i 
First of kindness to Mr. Dennis A. Smith; whom 1 admit to be 
now and to have been then worthy of all kindness, for the good 
which he did, and the benevolence which constantly prompted him 
to do still more : Secondly, of care for the interests of the Branch 
Bank, which are said to have been deeply involved in the fete of 
the Mechanics' Bank ; while that Bank in its turn depended on 
the solvency of Mr. Smith, who had became indebted to it beyond 
the whole amount of its capital : And thirdly a patriotic anxiety to 
save the city of Baltimore, from the shock which it must have felt, 
in the credit of all its monied institutions and the whole mercan- 
tile class, from the apprehended failure of the Mechanics' Bank. 
I think I state the case fairly and fully. 

I call it an excuse, may it please you honours, because I cannot 
suppose that it is intended or considered by my learned friends, as 
a legal defence or justification. (Here General Winder and Mr. 
Kell declared, that they did consider it, and rely on it, as a clear 
legal justification.) Be it so. Let us then enquire into its vali- 
dity. 

And here I remark in the first place, that if the money which 
they chose to apply to these benevolent purposes had been their 
own money, the application, however unwise and chimerical, might 
have been praiseworthy : at all events it would have been innocent. 
They would have had a right to dispose of their own money for 
purposes of benevolence, patriotism or speculation. The mint 
•would have been their own, and the coin their own. Above all 
the risk and the loss would have been their own. But how or 
when did my learned friends discover, that men have a right to dis- 
pose of the money of others for purposes of benevolence or patrio- 
tism ? Was the money intrusted to their care, for any such object r 
Certainly not ; but for a purpose directly contrary. Why not 
consult the Bank, about this benevolent and patriotic application, 
of its funds ? Why deceive it and its agents the Branch Directors, 
by studied falsehoods, concealments, misrepresentations, false re- 
turns, and false entries in the books ? Was it necessary thus to 
trepan and inveigle the Bank, into these acts of patriotism and 
benevolence ? If so this consequence at least follows ; that it was 
known by these benevolent and patriotic persons, to be averse 
from this mode of employing its money ; and that as the money be- 
longed to it and not to them, and had been confided to their care 
for purposes altogether different, their sound auty required them to 



- 108 

abstain from such an application, and above all to abstain from 
making it by such means. 

The crime lies in taking the money from the bank by these 
means ; and not in the object for which it was taken. 

In estimating the legal gilt, the legal character of the act of tak- 
ing, that object can never be taken into view, any more than the 
intention of restoring the money thus withdrawn. Doctor Dodd, 
no doubt, when he forged the bond of his friend and pupil the Earl 
of Chesterfield, intended to pay the bond ; and probably to apply 
the money raised on it to some benevolent or praiseworthy pur- 
pose: perhaps to the most sacred of all earthly purposes, the sup- 
port of an aged widowed and suifering mother ; or of a wife borne 
down by sickness or hunger: perhaps of children crying to him for 
bread. Yet he was condemned : and although many have thought 
that his case presented a fit occasion for the exercise of the pardon- 
ing power, which may temper justice with mercy, nobody has ques- 
tioned the legal correctness of the sentence. 

Divine as well as human law teaches us not to do evil that good 
may come out of it: and common sense teaches us, that if the na- 
ture of crimes could be altered, by reference to the objects with 
which they are committed, the whole moral and penal code must 
be subverted. The excuse founded on objects and motives, may 
be plead before the throne of grace, even in the exercise of that hu- 
man power, which the poet of nature and truth tells us is " likest 
God's," the power of pardoning ; such considerations may have 
their weight : but in a tribunal appointed to administer the law, 
however they may affect the feelings, they must have no influence 
on the conscience or the decision of a court or jury. What 1 have 
thus far urged rests on the idea, that the excuse set up, or the 
defence, since my learned friend choose to call it so, is true in 
fact. I now proceed to enquire into its truth. 

On the 8th of March 1819, or about that time, this benevolent 
and patriotic purpose, of securing the Branch Bank from great loss, 
and the town from a dreadful shock, by enabling Dennis A. Smith 
to pay his debt to the Mechanics' Bank, was first disclosed. 

James A. Buchanan, as the witnesses all state (a), first made 
the disclosure at a meeting of the Branch Board, in March 1819, 
when he had the pay list of the 8th of that month in his hand. And 
what was his situation, and that of his associates, at the period 



faj See pages 118, 119, 120, 130, 131 and 132. 



199 

when he thought fit to make this disclosure, to bring to light the 
benevolent motives and views with which they had acted, in April, 
June and December 1817, more than a year and an half before? 
The price of Bank stock on that day, will aftbrd an answer to the 
question. It stood at SI 1 1 the share, (a) Compare this price with 
what it cost them, as already explained, and the extent and utter 
hopelessness of their ruin will appear. They were insolvent for 
a million of dollars at least. 

Look to their situation in another respect. The resolution of 
October 20th, 1818, (b) calling for stock lists from all the Branches, 
had been evaded ; and we have seen in what manner, (c) The Pa- 
rent Board, however, was soon .convinced, it would seem, that 
something was wrong in the Baltimore Office; and to check its 
further deviations the resolutions of January 22d, (d) and Februa- 
ry 1st, 1819, (e) were passed. They are couched in general terms, 
but most probably had a particular view to the Office in Baltimore. 
At length the Parent Board spoke out, plainly and positively, in 
the resolution of February 19th, 1820, (f) which called perempto- 
rily on the Cashier of the Baltimore Office, in terms, for a particu- 
lar list of all notes discounted there on stock, with the names of 
the payers and endorsers, a description of the stock pledged, the 
rates at which the pledges were made, and copies of the instruments 
by which they were effected. 

The resolutions of January 22d, and February 1st, 1819, had 
put a hook into the noses of these persons, and checked effectually 
their further career. This of February 19th, compelled them to 
open their mouths ; longer silence became impossible : something 
must be said , and on the 8th or 9th of March following, and under 
the pressure of this irresistable necessity, they.disclose for the first 
time, the benevolent and patriotic intentions, by which they had 
been actuated in making their forced loans, a year and an half be- 
fore. The most indulgent kindness towards them must admit, that 
a disclosure of this nature, made under such circumstances and at 
such a time, is exceedingly suspicious. But they must not be con- 
demned on suspicion. The disclosure perhaps, though made so 
tardily, and under so irresistable a pressure, may be true. Let us 
enquire into its truth. I beg your honours to accompany me 
through the enquiry ; and I speak with entire confidence when I say, 

C<iJ See page 99. fbj See page 27. (~cj See pages 57, 58, &c. 

CdJ See page 27 and 28. fej See page 28. f/J See Page 28. 



200 

that it will result in proving this whole story, to be absolutely des- 
titute of truth, in all its parts. It is indeed a most disgusting 
tissue of falsehoods and I touch it with loathing. 

The excuse, or the defence, if my learned friends will still per- 
sist in calling it so, amounts to this : that the purchases of stock from 
Dennis A. Smith, gave occasion to their discounts to themselves, 
under the name of stock loans; and that the object of these pur- 
chases was to enable Mr. Smith to pay his debt to the Mechanics' 
Bank, and thus save it from ruin and the Branch Bank from great 
loss. 

Let us apply the touchstone of dates to this story. Dates are 
the spear of Ithuriel ; and when fraud, under whatever disguise it 
may lie concealed, is touched by them, it immediately starts up in 
all its n;«tive deformity. 

The first enquiry is, did their purchases from D. A. Smith really 
give rise to these forced loans from the Banch Bank ? 

Their first purchase from Mr. Smith was in April 181 7, and 
their second in June of the same year, (a) These^two purchases 
embraced 19,940 shares, which cost §2,591,368, and gave Mr. 
Smith a profit of §492,625. (a) All this Mas accomplished before 
the month of July 1817. They had found the means of purchasing 
stock to the amount of nearly two millions six hundred thousand 
dollars, for which they had pai'd; and these purchases had yielded 
Mr. Smith a profit of very nearly half a million, which he had re- 
ceived. I repeat and request it to be remembered, that all was 
accomplished before the month of July 1817. 

And when did those stock loans commence, which we are so 
emphatically and perseveringly told, were produced and rendered 
necessary by the purchases from Mr. Smith ? Turn to Mr. White's 
testimony and explanation of the stock loans, (b) and you have the 
answer. The first of them was that of §30,000 on the 5th of 
August 1817, at least five weeks after the second purchase from 
Dennis A. Smith. Next followed that of August 12th 1817 for 
§540,000, six weeks at least after the second purchase. Then 
came those of August 22d (c) 1817 for §215,000, and August 30th 
for §280,000, of the 4th and 5th of September 1817 for §47,000 and 
§165,000, and of the 11th of the same month for §37,000 which al- 
though it originated earlier, did not become a stock note till that 

(a) See pages 136, 137, 0) See pages 29, 42, 43 and 44. (c) See page 30. 



201 

day. (a) These were all for S. Smith and Buchanan, and consti- 
tuted a mass of 81,314,000. 

James W. M'Culloh's first stock note was that of September 
5th 1817, for §15,000, which was soon followed by those of Oc- 
tober 7th 1817 for 815000, and of the 23d, of the same month 
for 25,000, making a total so far of §55,000. And on the 20th of 
October 1817, George Williams' part of the operation commenced, 
with a note for §90,000, which added to the previous discounts of 
S.Smith and Buchanan (§1,3 14,000) and James W. M'Culloh 
(55,000) produce an aggregate of §1,449,000 which these persons 
had obtained, or rather taken to themselves, under the name and 
colour of stock loans, between the months of June and December 
1817: that is after the second purchase from Mr. Smith, and before 
the third, which it must be remembered was made in December 
1817 (a). Afterwards, it is true, that is on the 14th of February 
1818, they took up the note of §540,000, (b) which seems to have 
been done to hold up the appearance of a compliance, with the 
pressing order from the Parent Board of February 5th 1818 (c) to 
curtail on stock loans. But they soon went on to make new loans 
to themselves, so as to render the curtailment rather apparent than 
real; or rather so as to make the real curtailment very inconsidera- 
ble. This, however, is unimportant to the present view of the case, 
the object of which is to shew, how little connexion there was be- 
tween the stock loans in question, and the purchases from Dennis A. 
Smith: or rather to shew that there was no such connexion whatever. 
And accordingly we see, that these stock loans commenced five 
weeks after they had effected their two first purchases, and that at 
least six weeks before they made the third, they had pushed their 
operation of stock loans to very nearly its greatest extent. The 
whole amount was §1,542,136 12. The amount taken from the 
5th of August to the 20th of October 1817, inclusive, was one million 
four hundred and fifty nine thousand dollars. Hence it is quite 
clear, that except as to the difference between these two sums, a- 
mounting to eighty three thousand one hundred and thirty six dol- 
lars twelve cents, the stock loans could not possibly have had the 
smallest connexion with the purchases from Mr. Smith, the money 
for which was no doubt raised, by hypothecating the stock in Lon- 
don Liverpool and elsewhere, (d) and then drawing Bills on the 
funds thus created. 

fa)See page 30 (6) See page 29(c) See page 56 (J) See papers pages 91,92, 

27 



But! this is not the worst part of the detection bad as it is. 
The whole amount of Smith's, debt to the Mechanics' Bank never 
exceeded from eight to nine hundred thousand dollars. This is 
clearly established by the testimony of Mr. Smith himself, (a) 
who states the debt at from seven to eight hundred thousand 
dollars ; and of Alexander Brown, (b) a most intelligent witness 
and particularly well informed on this subject, who says that it 
was from eight to nine hundred thousand dollars. Mr. Mere- 
dith, indeed, at first supposed that it amounted to twelve hundred 
thousand dollars, but he afterwards admitted this to be an error (c). 
Now we are to recollect that the very first act of Mr. Smith, when 
he found in the beginning of April 1817 that his embarrassments 
increased upon him so as to render his failure inevitable, was to go 
like an honest man, and put into the hands of his friend and counsel 
Mr. Meredith, then a director of the Mechanics' Bank, no less 
than four hundred thousand dollars in good and available securities,, 
to be applied in discharge of his debt to the Bank. This payment 
so promptly and honorably made, reduced his debt to between four 
and five hundred thousand dollars, according to its amount as after- 
wards ascertained. At the time of making the payment much less 
■was supposed to remain due (d). 

Now let us recollect that Mr. Smith cleared, by his two first 
sales of stock to this association, those of April and June 1817, the 
sum $492,657 ; (e) which was quite enough to pay all that remain- 
ed due to the Mechanics' Bank, after the payment of §400,000 in 
April 1817, according to the highest estimate of the debt. Where 
then, will my learned friends be so good as to inform me, was the 
necessity for the third purchase from this gentleman, in December 
1817, at the extravagant rate of g 155 to the share, and to the enor- 
mous amount of §1,860,000 ? They cannot tell me, I am sure; not 
because they do not know, but because their situation forbids. I 
will by and by tell them : but in the mean time I must present one 
more view of the subject, and a still more important one, for the 
consideration of the court. 

These speculations in stock with Mr. Smith were made, it is said, 
to enable him to save the credit of the Mechanics' Bank, by paying 
his debt to it, and thus enabling it in its turn to pay the debt which it 
owed the Baltimore Branch. Now what was Mr. Smith's situation 
in relation to the Mechanics' Bank, when these purchases began. 

(a) See page 125. (6) See page 23, 24, 25. (c) See page 125 and 12?. 
(<0 See page 125 and 123. C*J Sqp page 137, 



203 

I answer that he had already, from other resources, quite inde- 
pendent of the first of these purchases, made a payment to the 
Bank of 8400,000 (a). It does not appear by direct testimony at 
what time this payment was made : but it was just at the time of 
his stoppage, and indeed before he stopped, and when he only 
perceived that he must stop. 

This stoppage, as Mr. Smith has informed us, (b) took place on 
the 9th of April 1817 ; and he also states expressly, that the first 
sale to the Traversers was after his stoppage. We know be- 
sides from the testimony of Mr. Meredith and Mr. Brown, that the 
payment of $400,000 was made in "bills receivable" or promi- 
sory notes ; some of which to the amount of §250,000, were dis- 
counted by the Branch Bank, and the rest by individuals. Now 
there is no proof, and it cannot be presumed, that the Traversers 
paid Smith for his stock in bills receivable, falling due at different 
and some of them at remote periods. It is clear that these bills re- 
ceivable were a part of his estate and effects, derived from his com- 
mercial transactions, and wholly independent of his sales of stock. 

Thus we see that^without reference to the first of these sales, 
and even before it Was made, Mr. Smith had paid no less a sum than 
8400,000, on account of his debt to the Mechanics' Bank. Now 
let us enquire what effect this payment had on the affairs and cre- 
dit of the Mechanics' Bank, and its situation with the Office of Dis- 
count and Deposit at Baltimore. Here we may safely receive the 
testimony of Mr. Brown, a Director of the Mechanics' Bank at that 
time, a very intelligent man, and the most efficient agent in the 
whole arrangement. 

He tells us, (c) that he considered the Mechanics' Bank as secure, 
after these notes to the amount of 8400,000 were assigned to it, 
by Mr. Smith. This view of the case is supported both by Mr. 
Colt (d) and Mr. Meredith; though not so expressly by the latter 
gentleman as by the former. They all agree in stating that there 
was but one meeting of the joint committee, on the affairs of the 
Mechanics' and Branch Banks, at which every thing was fully and 
satisfactorily adjusted, and the Mechanics' Bank placed in an easy 
safe situation. I will now introduce to your Honors a witness, whose 
accuracy neither the Traversers nor their Counsel will call in ques- 
tion, and who fully supports the same statement. He also proves 

(a) See page 122, 123, Mr. Meredith's testimony, and 124 Mr. Brown's, 
(ft) See pages 138. (c) See page 124. (d) See page 126\ 



£04 

the very important fact, that this satisfactory and advantageous set- 
tlement, satisfactory and advantageous to both parties, took place and 
was finally accomplished on the 24th of April 1817. This witness 
is James A. Buchanan, then President of the Baltimore Branch. 

In his letter of April 25th 1817, (/i) he officially informs the 
President of the Parent Board of tins arrangement, which he says 
took place on the preceeding day. In this letter we find this very re- 
markable expression : remarkable I mean when taken in connexion 
with the defence which I am now considering. "A full free and 
unreserved interchange of opinion took place, the result of which is 
a satisfactory conviction to our minds, that the Mechanics' Bank 
can sustain no loss from Mr. Smith." 

On this letter comment would be superfluous. I will barely re- 
mind your honors that the adjustment which thus placed the Me- 
chanics' Bank out of danger of "loss from Mr. Smith," was effected by 
means wholly unconnected with those purchases of stock from Mr. 
Smith, which the writer of this letter would now have us to believe 
were made for the express purpose of enabling him to pay his debt 
to the Mechanics' Bank, and in all probability before the first of 
those purchases took place. 

There is also an official letter from James W. M'Culloh, to the 
Cashier of the Parent Bank, dated June 23d, 1817, (b) in which the 
same subject is mentioned, not so fully indeed, but to the same ef- 
fect. I merely recal this letter to the recollection of the court, 
without detaining it by any detail. But I must refer somewhat 
more particularly to one from James A. Buchanan to the Cashier of 
the Parent Board, which bears date on the 31st of October 1817. (c) 
In speaking of the arrangment of April 24th 1817, he uses this re- 
markable expression, "the Mechanics' Bank is of unimpaired credit;" 
and this state of things he ascribes not to any subsequent operation, 
but solely to that of which he had made mention in his letter of A- 
pril 25th. 

But should we admit that Mr. Smith's means of making this 
payment of §400,000, in April 1817, were derived in whole or in 
part from the first sale to the Traversers, that of 7404 shares in 
the same month, how would it avail them ? 

The whole amount of this sale was §886,400, and Smith's gain 
from it, as stated by himself, (cC) was § 146,080. This gain if it ac- 
crued before the payment of §400,000, and made part of it, still 
left a balance of §253,920 which he unquestionably derived from 

(a) See page 134. (b) See pages 134, 5. (c) See page 135, (d)See page 137. 



203 

his own means. And after he had effected this payment he still 
owed the Mechanics' Bank, as was afterwards discovered but not 
suspected at the time, a debt of between four and five hundred 
thousand dollars* Let us call it five hundred thousand dollars, 
that we may be sure not to rate it too low. To pay this $500,000 
he possessed those ample resources, which enabled him to discharge 
a debt of five millions in the course of that year. The Mechanics' 
Bank had placed its debt to the Branch on a satisfactory footing*, 
and was itself in a safe and easy situation, with its credit "unim- 
paired" and public confidence restored. In this state of things the 
second purchase is made ; that of 12,536 shares in June 1817, at 
g 1 36 the share, amounting to g 1,704,896. Did the state of Mr. 
Smith's affairs, of those of the Mechanics' Bank, or of the Balti- 
more Branch, at that time require this enormous speculation ? Cer- 
tainly not. Neither he nor the Mechanics' Bank required the 
least assistance. H e had paid them §400,000, and they had paid the 
same sum to the Branch Bank. His balance to the Mechanics' 
Bank, and their balance to the Brancli were placed on a satisfac- 
tory footing ; their credit stood " unimpaired ;" and public confi- 
dence was completely restored. It is therefore worse than mocke- 
ry to tell us, that the second purchase was made for the purpose 
of supporting Dennis A. Smith and the Mechanics' Bank. 

Let us however grant that it was so, and then enquire how far> 
even this concession will aid their case. 

The amount of the second purchase 12,536 shares at SI 36 the 
share was §1, 704,896, and Smith's gain on it was g346,577. (a) Af- 
ter his first payment to the Mechanics' Bank, of 8400,000 in April 
1817, he had still from three to four hundred thousand dollars to 
pay, as he himself states ; (b) or from four to five hundred thousand 
dollars, as Mr. Brown thinks, (b) It may be safely stated at 
g40 ,000 as an average of these different rates. Now of this 
g400,000 the sum of $346,577, was furnished by the second sale; 
leaving a balance of only §53,423 to be provided for by the third. 

Here at least it might be supposed, that all anxiety about Den- 
nis A. Smith and the Mechanics' Bank, departed from the breasts 
of these kind and patriotic persons : more especially as we find 
that in December 1817, when he made his final payment to the 
Mechanics' Bank, he not only possessed and paid to the Bank 
gl 55,000 in promissory notes, clearly not derived from any of these 



fa J See page 137. C b J See page 125. 



206 _ 

sales, but the Calverton estate besides, which the Bank received at 
890,000, being 850,000 more than the amount of the mortgage, 
from which it was released in consequence of the last sale, (a) — 
But no ! their anxiety continued to be so great, for this most esti- 
mable individual, and for this institution so important to the pub- 
lic, that it impelled them to make a third purchase from him in 
December 1817, at the extravagant rate of $155 to the share, and 
to the enormous amount of 8 1,860,000 ; by which he was to be en- 
abled to acquire a profit of 855,000, being little more than the ba- 
lance remaining due from him to the Mechanics' Bank, after ap- 
plying in payment a sum equal to the gains derived from the two 
former operations. 

And this is the absurd and extravagant tale which is set up as 
a defence in a court of justice, and which we are gravely required 
to believe ! We are gravely called on to believe that th ese men, 
from motives of mere benevolence and patriotism, engaged in a 
speculation in Bank stock to the amount of 84,451,376, the whole 
of which was purchased at an average of 8138 to the share, and 
more than one third of it at the extravagant rate of 8155, for the 
sole purpose of furnishing Mr. Smith with additional means of 
paying a debt of 8800,000, to the Mechanics' Bank, of which it is 
clearly in proof that means derived from other sources had enabled 
him promptly to discharge one half, so as to put an end to all dis- 
quietude, and place the institution in the safe and easy situation of 
" unimpaired credit" ! ! 

To such a tale it is, I repeat, that a court of justice acting on 
oath, and invested in this case with the powers and obligations of a 
jury, is gravely called on to give credit ! ! 

We are now prepared to understand and to explain the real 
motive and object of these purchases, and especially of the last. 
The two first were manifestly bold and wild speculations, upon 
the rise of Bank stock ; and had they been made at the risk of the 
speculators themselves, or with their own means, might have stood 
on the same ground with other instances of this species of despe- 
rate gambling ; by which enormous gains are sometimes made, at 
the expence of the less fortunate gamesters, and enormous loss aa 
frequently incurred. This applies more strongly to the second 
purchase than to the first ; although both are of the same character. 
But the third stands on different grounds, and requires more par- 
ticular explanation. 

faj See page 123. 



soy 

This explanation is found in the situation of these parties, and 
of their stock speculation, in December 1817, the period of the 
last purchase. Let it be recollected that the purchase embraced 
12,000 shares at SI 55 to the share, and amounted to one million 
eight hundred and sixty thousand dollars. 

Nobody can suppose that men of the knowledge and intelli- 
gence possessed by these Traversers did or could believe, that 
Bank stock was or ever could be worth g 155 to the share of jglOO 
It was well known, and could not have been forgotten, that the old 
Bank of the United States, existing in the most prosperous period 
of commerce which this country ever saw or ever can expect to 
see, with a capital of only ten millions of dollars, and comparative- 
ly few rival Banks, divided regularly no more than 8 per cent an- 
nually; and that such dividends, supported steadily through a long 
succession of years, gave a regular settled price of only S140 to 
the share of one hundred dollars. How then was it possible for 
any men of sense, with these facts fresh in their recollection, to be- 
lieve that a Bank with a capital of $35,000,000, a commerce great- 
ly diminished by the changes in the political state of the world, and 
a much greater number of powerful rivals in the state Banks ; in 
short with a great diminution of the demand for Bank capital, and 
a great increase in the supply; could make and steadily support 
such dividends, as would sustain its stock at 40 per. cent, advance, 
much less at 55 ! No, may it please your honours; these men be- 
lieved no such thing. They had been long and deeply engaged in 
blowing up a bubble, on which they hoped to float to fortune. Not 
only their hopes of fortune, but their sole chance of escape from 
utter ruin exposure and disgrace, depended on keeping this bubble 
afloat. Should it break they must sink, and they knew it well, to 
utter perdition. Under their two former purchases from Smith, 
they held the enormous quantity of 1 9,940 shares, which independ 
ently of brokerage commission and other charges, had cost them 
82,591,376. Very nearly two thirds of this vast mass of stock had 
cost them the extravagant price of SI 36 to the share of one 
hundred dollars : that is 36 per cent above par. For the rest they 
had paid a high price. A slight fall on so great a number of shares, 
must produce their ruin. Mr. Smith, more skilled than they in 
such speculations, had by his activity and intelligence obtained the 
controul of 12,000 shares more. He held contracts for them, by 
virtue of which he was to have them, on paying a certain price.—- 
If he did not pay it he failed to get the shares, and stood where he 



208 

was before. If he could obtain a higher price from others, all the 
difference was gain to him. He knew the situation of these men., 
and that he held their fortunes their reputation and their very ex- 
istence in his hands. They knew it too. He had but to go into 
the market with his 12,000 shares, and the bubble must burst. He 
would remain where he was, but they must sink into hopeless ruin. 
He therefore prescribed his terms, which considering his power o- 
ver them may be regarded as moderate ; and they were compelled to 
submit. He contented himself with a gain of §55,C00 besides the 
release of their mortgage on his Calverton estate, to the amount of 
forty thousand dollars more. This release, he tells us indeed, was 
not an express part of the bargain ; and we are given to understand 
(a) that it proceeded from a grateful liberality on their part, on ac- 
count of the large benefits which they had derived from the two 
first purchases. We also learn from Mr. Smith, (ft) that he receiv- 
ed an assurance from one of the purchasers, James W. M'Culloh, 
that if any profits should arise from the last purchase, they should 
be assigned to him (a). 

This no doubt was intended to be understood, as a further in- 
stance of liberality and gratitude on their part; but we may under- 
stand it as an additional proof, that the real object of the purchase- 
was to keep him and his 12,000 shares of stock out of the market : 
and such I have no doubt was the true motive of this most extra- 
vagant and desperate speculation. 

Before I quit this subject of the arrangement of Dennis A. 
Smith's affairs with the Mechanics' Bank, and the settlement be- 
tween that Bank and the Baltimore Branch ; I must take some no- 
tice of a circumstance, frequently mentioned and much relied on in 
the defence : T mean the secrecy enjoined on the committee of 
conference from the Branch Bank, in relation to the manner in 
which the settlement with the Mechanics' Bank had been effected. 
This injunction of seerecy my learned friend who conducts the 
defence, seems to consider as of very great importance ; and indeed 
he finds in it the only explanation which he has attempted to give s 
of the false entry made by James W. M'Culloh, in the books of the 
Branch Bank, on the 14th of November 1818, a year and an half 
after the injunction was laid. 

Now it is perfectly clear that this injunction of secrecy was 
laid by the committee of the Mechanics' Bank; and that its object 

(a) See page l?r. 



£09 

was to prevent the public from knowing how deeply that Bank had 
been and still was implicated with Dennis A. Smith, whose failure 
could not be concealed. For although the two committees were 
perfectly satisfied, at the meeting on the 24th of April ! 817, as to 
the ability of Mr. Smith to pay his remaining debt to the Mecha- 
nics' Bank, and that of the Mechanics' Bank to pay all that it 
still owed to the Branch, yet these matters getting abroad might 
easily be misunderstood, and would be very likely to create a gene- 
ral alarm, which would not be less dangerous for being unfounded. 
To prevent this danger was manifestly the object of the injunction 
of secrecy ; a very prudent precaution, which had a very happy ef- 
fect : for we find that the alarm entirely subsided, in a very short 
time, and that confidence in the solidity of the Mechanics' Bank 
was soon restored. This is fully proved by Mr. Brown Mr. Me- 
redith and Mr. Colt. But it is perfectly clear that all this had no 
relation whatever to the affairs of the Branch Bank, except so far 
as that institution had an interest in common with the rest of the 
community, in maintaining the credit of the Mechanics' Bank ; and 
that when Mr. Smith in December 1817 made the final payment of 
his debt to that Bank, all motive for secrecy ceased, and the injunc- 
tion was no longer regarded. It is impossible I apprehend to recol- 
lect and compare the testimony, without being fully impressed with 
the correctness of this view of the case. 

One other remark, connected with this part of the case, may 
it please your honours, before I proceed to the other points which 
remain to be discussed. 

Great pains have been taken to prove, on the part of the Tra- 
versers, that some of the Branch directors, and especially Mr. 
Colt, expressed strong approbation of the conduct of these persons, 
as explained to the Board by the President on the 8th or 9th of 
March 1819. Mr. Colt is stated to have been so much struck with 
their merits in this transaction, as to declare that if the Branch 
lost " the whole line of S600,000," it would still be under great 
obligations to them. It was to this supposed fact, I presume, that 
my learned friend alluded in his opening address; when he said 
that some of those who are now most eager in prosecuting his cli- 
ents, were formerly the first to praise the course of conduct for 
which they were afterwards indicted. I shall not now stop to en- 
quire, how much of mistake there is in this testimony. There evi- 
dently is some mistake, and probably a great deal : for it is quite 
clear that there existed at the time no " line of 8600,000 ;" and 
28 



310 

neither Mr. Colt himself, nor Mr. John Hoffman who stood at his 
side when the remark is supposed to have been made, recollects any 
thing of (a) the kind. It equally escaped the attention of Mr. 
Beatty. (b) But admitting that it was made, I ask what does it 
prove? Certainly nothing but this, that Mr Colt was deceived 
and imposed on, as it was intended that he and the other Directors 
should be. He and they had heard a tale, which we now know to 
have been wholly false ; but which for want of the information 
that we possess, he and probably they believed to be true. This 
proves that the deception, as far as he was concerned, produced its 
intended effect. But is it less a deception, because he was not a- 
ble at the moment to detect it ? Was it less false, because he at 
the moment did not know it to be false? And what is this boast- 
ed argument, but a second attempt to prove, that fraud ceases to be 
fraud, whenever it succeeds ? 

I proceed now to review the means put in practice by these per- 
sons, to deceive the Parent Board, and to conceal from it their mal- 
practices in the Baltimore Branch. These devices I consider as 
part of the " res gesta," and as important in shewing the " quo 
animo ;" the intention with which the acts charged in the indict- 
ment were done. And I need not remind such a court as I now 
address, that subsequent acts in relation to the same matter, are 
frequently our surest guides in searching for that previous intent, 
in which criminality consists. Fraudulent concealment, conse- 
quently, affords the strongest evidence of fraudulent taking. Let 
us therefore take a brief review of the falsehoods and frauds, by 
which the taking of this money from the Branch Bank was attempt- 
ed to be concealed. For this purpose I must recur again to the re- 
solution of October 20th, 1818 ; which first called upon the Branch 
Banks, for distinct accounts of loans upon stock, (c) 

This call, as we have already had occasion to remark, was gene- 
ral in its terms, so as to include all the Offices of Discount and 
Deposit; but very specific and precise in its objects. It embraced 
three points ; first a separate list of notes discounted on stock se- 
curity ; secondly the names of the drawers and endorsers ; and 
thirdly an account of the stock pledged, (d) 

It is quite obvious, that a true answer to this call would have 
disclosed the whole fraud of the Traversers, and produced an im- 

faj See pages 132, 133. fbj See page 131. CO See P a 8" e 2T: 
CdJ See pages 62, 63. 



211 

mediate explosion. This they knew as well then, as we know it 
now They seem, nevertheless, not to have preceived at first, how 
this catastrophy might be avoided. It appears from the testimony 
of >1r. Dennis A. Smith, (a) that a stock list was prepared and car- 
ried by James W. M'Culloh to Philadelphia, which it was found 
necessary to alter, before it could be presented to the Parent 
Board ; and this alteration, as we further learn from the same wit- 
ness, was to consist in transferring part of the stock loans, to loans 
on personal security. This measure, it seems, was advised by 
Jonathan Smith, the Cashier of the Parent Bank ; and it was not 
whispered in " unwilling ears." JVTCulloh forthwith returns to 
Baltimore, without presenting the list to the Parent Board, (a) and 
begins to prepare for this indispensible alteration. 

The first step in the preparation that has come to light, was to 
write a letter on the 9th of November 1818, to the Cashier of the 
ParentBank (a). This letter, obviously intended for the inspec- 
tion ofthe board at Philadelphia, paves the way for the meditated 
alteration, by stating that " entries had sometimes been debited to 
loans on stock, which should have been to bills on personal security; 
and vice versa." This we now know, and he knew then, was ab- 
solutely false. No such entries are found in the books; nor is it 
now pretended or intimated that any such exist. 

The next step is of the same general character, but far more 
grave and heinous. The first was a simple falsehood, wilful in- 
deed, and told with the deliberate purpose of deceiving: This is 
forgery of the deepest die ; a deliberate falsification of the books 
intrusted to his care, which he was bound by every tie of honor, and 
by the express terms of his oath of office, to keep faithfully. They 
should have been as sacred in his eyes as the honor of his mother. 
They are the records on which the rights of all interested in the 
institution depend ; and to alter them is like removing the land- 
marks of property : a heinous offence in any one, but in him to 
whose official keeping and to the sanction of whose oath they were 
confided, a crime of the darkest hue. Yet this crime these per- 
sons did not hesitate, or at least did not forbear, to commit, for 
the purpose of concealing their frauds from the Parent Bank, as 
well as from the Baltimore Branch. I say " these persons," may 
it please your Honours : because although the proof is that Mr. 
M'Culloh alone ordered this alteration, it is yet in full evidence 

fa J See pages 62, 63. 



that he and Buchanan acted in concert, throughout the whole trans- 
action to which it relates, and of which it makes a most important 
part. The presumption therefore clearly is, that he concurred in 
this part also. If he wishes to have it otherwise believed, the bur- 
den of the proof lies on him; and such proof no attempt has been 
made to produce. Let us now look at this alteration of the books. 
Mr. Rutter one of the book keepers of the Baltimore Branch, 
informs us (a) that on the 14th of November 1818, James W.M'= 
Culloh the Cashier handed to him an entry, written on a separate 
piece of paper, and directed him to copy it into the daybook; which 
he accordingly did. He says that it was the hand writing of M'- 
Culloh himself, and that he entered it without further enquiry : 
conceiving it, I suppose, to be his duty, as it undoubtedly was, to 
make any entries in the books which the Cashier might order. He 
then opened the book and read from it the entry thus made. Per- 
mit me to read it to your Honours, from the copy which I hold in 
my hand, and which was made at my request by Mr. Rutter. The 
Book is here to attest its correctness. 

"Bills Receivable To Loans on Stock Dr. 

For this sum, being amount that had at various times 
been charged, as lent upon the hypothecation of stock 
at this office, but which should have been charged to 
Bills Receivable, as ascertained by making up a list 
of the loans existing upon stock, hypothecated here 
and at the Bank of the United States. 8852,683 64. 5? 

The court will recollect that the books have been produced and 
inspected : That they have laid on the table three weeks, open to 
the Traversers and their Counsel : that the assistance of the clerks 
in attendance, and of the present Cashier, has at all times been 
readily afforded : That access has always and readily been given to 
these books, out of court, for the purpose of more careful and con- 
venient examination : and that no attempt has been made on the 
part of the Traversers, to point out any such errors as this entry 
and the letter of November 9th import, nor indeed any intimation 
that such errors exist. On the contrary it fully appears, by the 
inspection of the books themselves, as well as by the testimony of 
the clerks and the present Cashier, that no such errors exist. Thus 
it is established, and indeed admitted, that the entry is absolutely 
false. And my learned friend who conducts the defence, has been 



(a) See page 64. 



$13 

able with all his ingenuity, to suggest no better excuse for it, than 
to say that it might in some way which he did not attempt to ex- 
plain, be connected with the injunction of secrecy imposed in A- 
pril 1817, on the members of the joint committee from the Branch 
and Mechanics' Banks. 

Its falsehood being thus undeniably established, let us enquire 
a little into its object and effect. 

For this purpose we must resort in the first place, to the state- 
ment of their stock and stock loans, which these persons exhibited 
in Philadelphia in March 1819, and which is called the paper x(a). 
I shall hereafter have occasion to advert to it, with other views ; 
but my present use of it, is to shew the amount and condition of 
the stock held by these persons. It informs us that they had 
18,290 shares hypothecated at par in the Bank of the United 
States ; and. that on 5264 shares, part of the 18,290, they had taken 
there 25 per cent advance ; leaving 13,026 still at their disposal, so 
far as it had any disposable value above par. 

Twenty five advance on these 13,026 shares would 

amount to $325,650 

This paper also shews, and it is the first intimation 
which we get on the subject, that they held in the 
Baltimore Branch 2,558 shares, which at par would 
yield 8255,800 

and 25 advance on them would be 63,950 



This was all the stock security over which, accord- 
ing to their own shewing, they had any power of dis- 
position ; within the limits of 25 per cent above par, 
the utmost limit to which discounts on Stock had 
ever been authorized It produced the sum of $645,400. 

It is true that not one of these 13,026 shares was in fact hypo- 
thecated at the Baltimore Branch, for the additional loan thus 
obtained on them ; and that no hypothecation existed there or 
any where else, of any part of the 2558 shares. Neither was any 
lien given, in any way, to the Parent Bank or the Baltimore Branch, 
on the 13,026 shares, beyond their par value. But still this secu- 
rity, to this extent, was in their power ; and their object was to re- 
present untruly to the Parent Bank, in answer to its call of Octo- 
ber 20th, 1818, that their stock loans in the Baltimore Branch had 
not gone beyond this security : that is had not exceed $645,400. 

(a) See page 91. 



2±4 

Had they told the truth on the 14th of November 1818, it must 
have appeared, that on this security of §645,400, or rather on the 
pretence of it, they had then made loans to themselves to the a- 
mount of § 1,58 1,836 12 : that being the amount, as we have alrea- 
dy seen, of their stock loans on the I3th of that month.(a) Such 
a disclosure would have been fatal to all their plans and hopes.-— 
The truth therefore was to be concealed ; and the Parent Board 
was to be imposed on, as the Branch had been, by a false statement. 
To lay the foundation of this false statement, and to give it colour 
and support, was the object of their false entry of November 14th 
1818 : on which my learned friends on the other side have bestow- 
ed the gentle appellation of "the transfer entry." Now let us see 
its effects. 

This entry transferred §852,683 64 from loans on stock, to 
loans on personal security. Being posted immediately into the 
ledger, as Mr. Itutter informs us that it was, it there formed an 
item in the general account of stock loans, the balance to the de- 
bit of which, as proved by the same witness and the books, (b) was 
§2,402,435 78. We know that a stock list was transmitted to 
Philadelphia, on the same day when this entry was made, Novem- 
ber 14th, 1818; (c) but not having been able to produce it, or to 
prove the copy that was offered in evidence, we do not know what 
it contained. We may however fairly conclude, that it did not 
differ materially from that which was transmitted by these persons 
in March 1819, only four months afterwards. By recurring to the 
stock list of March 9th 1819, (c) we find in the first place, that it 
represents the stock loans as amounting on that day to §2,400,202 90 
only §2,232 88 less than the balance standing on the ledger, to the 
debit of stock loans, on the 14th of November 1818, as proved by 
Mr. Rutter : (d) and secondly we find, that it represents the whole 
stock debt of the Traversers, on the 8th of March 1819, as amount- 
ing precisely to this sum of §645,400 j exclusive of §3,400 stand- 
ing to the separate account of James W. M'Culloh, and secured by 
an actual hypothecation of 34 shares. 

It cannot be conceived that the near agreement in the total 
amount, between the account in the ledger on the 14th of Novem- 
ber 1818, and the stock list of March 8th, 1819, is accidental. It 
must have been produced by the operation of the false entry, equal- 
ly on both. Nor can it be conceived that the stock list furnished 



faj See page 71, 2 3. fbj See page 64. fcj See pages 58, 
fdj See pages 73 and 76. 



59. 



&L5 

on the 8th of March 1819, differed in any material particular from 
that of November 14th, 1818. As the latter represented the stock 
debt of the Traversers to amount to this precise sum of §615,400, 
we are authorized to conclude that the former gave the same re- 
presentation: and consequently that it was the effect, as it certain- 
ly was the object, of this false entry, or to use its more gentle 
name this "transfer entry," to represent these persons to the Pa- 
rent Board, as borrowers upon stock to no greater amount, than 
they might cover by unappropriated stock security which they 
held. 

And this false entry is not the only fraudulent device employed 
by the Traversers, to deceive the Parent Board, evade its call of 
October 20th, 1818, and keep it in the dark as to the true state of 
matters in the Baltimore Branch. We have seen that it was not 
till the 14th of November, 1818, twenty four days after this order, 
that a pretended obedience was yielded. M'Culloh's letters of 
that date prove, that a stock list was then sent ; for which diligent 
search has 'been made in the Bank at Philadelphia, without suc- 
cess, (a) How why and when it disappeared remains to be ex- 
plained, by those who may be interested in the explanation. It is 
enough for us to shew that it was there, soon after the 14th of No- 
vember, 1818 ; which we have done by M'Culloh's two letters of 
that date to Jonathan Smith, (b) These letters, taken in connexion 
with those of October 26th and November 9th, (b) furnish us with 
some other important particulars, in relation to the list then trans- 
mitted. First that it varied from former returns : secondly that 
this variation consisted in representing the amount of loans upon 
stock as less, and that of loans on personal security as greater, 
than in the preceeding statements : Thirdly that it was produced 
by the discovery and correction of some errors in the books, which 
consisted in charging to the account of discounts on stock some 
loans, which ought to have been charged to personal security: and 
fourthly that the correction of these errors had produced the de- 
lay, in furnishing the statement. Here the leading and important 
fact, thus officially communicated to the Parent Board, through its 
Cashier Jonathan Smith, the fact which gives importance to all the 
rest, on which the whole matter turns, is that errors had been dis- 
covered in the books : and this assertion we now know to be abso- 
lutely false. It is proved to be so by the production of the books, 



(a) See page 66. (A) See pages 58 and 59, 



210 

which have been open for more than a fortnight to the inspection of 
the Traversers and their Counsel, without the least attempt on their 
part to shew any such error, or indeed the slightest intimation that 
any such exists. Here then is a plain and palpable " suggestio 
falsi" to the Parent Board, in answer to a clear and positive call 
for official information. 

It was followed up by an equally palpable " suppressio veri," 
in relation to the Branch Board: for all these four letters are 
withheld from the letter book, the official record of the Branch 
Bank, where it was the duty of the Cashier, James W. M'Culioh, 
the writer of all these letters, to see that they were faithfully en- 
tered, for the information of the Board. To this point the testi- 
mony of William L. Gill, the corresponding clerk, and the letter 
book itself (a) are full and conclusive. 

Why this suppression of important official communications? I 
answer that they were thus kept out of view by the Cashier, in vio- 
lation of his duty and his oath, (b) to hoodwink and deceive the 
Branch Directors ; who would instantly have detected the false- 
hood had the letters been there, and exposed it by a reference to 
the books. 

There is another falsehood in the last of these letters, which 
was told to prepare the way for the next step, in this disgusting se- 
ries of frauds and impositions. It says, in relation to the errors 
which the writer pretends to have discovered in the books, " these 
variations adjusted, the next statement will accord ; unless some 
small loan is taken up or paid off." If he meant that the next 
statement would accord with that which he then transmitted, no 
doubt he told the truth : but this was not what he meant ; or at 
least not all that he intended to give the Parent Board to under- 
stand. He intended to tell them, not merely that the next state- 
ment would accord with that which he had transmitted, a very su- 
perfluous piece of information, to say the least of it ; but to make 
them understand that it would accord with the true state of facts, 
as appearing on the books. W r e shall now enquire how he kept, 
and how he intended to keep, this promise. 

This brings me to the Stock List and Pay List of March 8th 
1819, which are clearly proved to be the joint act of Buchanan and 
M'Culloh. But before I proceed to consider them particularly, 
permit me to recal the attention of your honors for a moment, to the 

(a) See page 59. (J>) See the oath, page 14G« 



817 

resolution of February 19th 1819, by the Parent Board, to whicl.i 
I have already had occasion to advert, in a former part of the argu- 
ment. I shall therefore notice it now very briefly (a). Its terms are 
so precise and positive, that evasion or escape seemed hardly possi- 
ble. They called not only for a list of all the notes then discount- 
ed on stock, in the Baltimore Branch, with the names of the draw- 
en and endorsers, and a particular description of the kind of stock 
and of the rate at which it was hypothecated, but for copies of the 
several instruments by which the several hypothecations had been 
effected. The tone and character of this call clearly show, that 
the Parent Board at the time of making it had obtained correct in- 
formation, concerning the nature of the game that had been played 
in the Baltimore Branch, and was firmly resolved to probe it to the 
bottom. 

We have seen the first effect of this order, on the President and 
Cashier of the Baltimore Branch. It produced the miserable ex- 
hibition which took place at the Branch Board, on the 8th or 9th of 
March 1819 ; and which would excite pity, if every other feeling 
were not precluded by indignation and disgust. It drew from them 
also the stock list and pay list of March 8th 1819, which were in- 
tended as an answer to it ; or rather as the evasion of an answer, 
when it was no longer possible to remain silent. 

Let us now turn to these two papers, which are in evidence un- 
der the official signature of James W. M'Culloh as Cashier, and are 
proved to have been presented to the Parent Board, by him and James 
A. Buchanan, (b) who thus made them his own act. Let us see 
how they obey the call, which they profess to answer. 

To begin with the stock list (c). The first remark to be made 
on it is, that it represents James W. M'Culloh as a borrower on 
stock, to the amount of §3,400 only ; which was secured by the 
actual pledge of 34 shares. But the real list of stock loans, as 
they stood on the books of the Branch Bank on that day, (d) shews 
that he was in fact a borrower under the name of stock loans, to the 
amount of 8592,201 01. This falsehood is as glaring as it is gross. 

The next is very little less so. This list of March 8th 1819 re- 
turned to the Parent Board, represents S. Smith and Buchanan as 
borrowers on stock, to the amount of only §235,375, n two notes, 
one for §97,875, and the other for §137,500. (e) But it appears 

(«) See pages 28. (6) See page 88, 89, 90. (c) See stock list. f<f)See Page 80. 
(e) See page 76, 



218 

from the real stock list of the 8th of March 1819, that they were on 
that day borrowers on pretence of stock security, to no less an a- 
mount than $870,801 77, (a) on nine notes. So the list transmit- 
ted to Philadelphia, represents George Williams as a borrower on 
stock, to the amount of §410,025 on two notes, (b) while the true 
list of the same day shews, that he was a borrower to the amount of 
only SI 5 9,833 34 (c) on one note. This is the third falsehood told 
by this statement to the Parent Board ; and taken in connexion 
with the second it makes out a fourth, of a very curious and signi- 
ficant character. The loans of S. Smith and Buchanan and George 
Williams as represented by this list, amount precisely to the sum 
of §645,400, which as we have already seen, it was the object of 
the false entry of November 14th 1818 to represent, as the whole 
amount of the stock loan of this association : and as the list keeps 
James W. M'Culloh in his character of a member of the associa- 
tion, entirely out of view, the object of the false entry is here effec- 
ted, and the whole fraud stands confessed. To borrow a very ex- 
pressive phrase from the French, " it leaps to the eyes." It leaves 
those who would gainsay it without a reply, and all who hear the 
proof without a doubt. The whole amount of the stock loans of 
these persons is represented to be §645,400, precisely the amount 
of unappropriated stock security, which rating stock at §125 to the 
share, they then possessed : while the real stock list of the same 
date proves, that their loans to themselves under pretence of stock 
security, amounted in fact on that day to §1,629,436 \2 (d) ; near 
ly three times as much ! Thus it was that they answered that 
part of the order of February 19th, which required them to state the 
amount of loans upon Stock. 

To that part of it which called for a list of all the notes dis- 
counted on stock, with the names of the drawers and endorsers, an 
answer equally false is given. All the notes of James W. M'- 
Culloh, to the number of fourteen, and the amount of §592,201 01 
are suppressed. Of those of S. Smith and Buchanan, nine in num- 
ber, one only is given, that of §97,875 ; and instead of the other 
eight a new note is fabricated for §137,500, so as to make their stock 
debt appear to be only §235,375, instead of §870,801 77, its true 
amount on that day (e) while George Williams, instead of one note 
of §159,833 34, is represented as having two amounting together 

(a) See page 82. (b) See page 76. (c) See page 83. 

(d) See page 84, and the note there, (e) See page, 82. 



£19 

to 8410,025 ; which are entirely fictitious. Thus twenty two notes 
are suppressed ; and of the four returned three are fabrications, 
made to suit the occasion* 

The resolution further requires, an account of the rate at which 
stock was hypothecated, and copies of the instruments of hypotheca- 
tion. In answer to this part of the call the list returned states that S. 
Smith and Buchanan's note of §97,875, endorsed by George Wil- 
liams, was secured by 783 shares of United States Bank Stock,at $125 
to the share; and that of SI 37,500, with the same endorser, by 5,500 
shares, at 25 per cent advance, over and above their par value, at 
which they had been already pledged in the Parent Bank (a). It 
also states, in relation to the two notes returned for George Wil- 
liams, that one of them, for $221, 875 endorsed by Amos A. Wil- 
liams, was secured by 1775 shares, at the rate of $125 to the share, 
and the other, for $188,150 endorsed by S. Smith and Buchanan, 
by 55 per cent advance at the Baltimore Office, on 7526 shares, in 
addition to their par value, at which they were pledged in the Pa- 
rent Bank : This makes up precisely the stock security, which at 
the rate of $125 to the share this association had at their disposal ; 
that is 2558 shares in the Baltimore Branch, and 13026 shares 
pledged only at par in the Parent Bank. Thus the whole stock 
list returned, in compliance with the order of February 19th 1819, 
is made to agree with the statement on the books, which had been 
produced by the false entry of November 14th 1818. But it must 
be recollected that in this point, as well as in all the rest, it imports 
an absolute and intentional falsehood. It represents this stock as 
having been actually pledged and hypothecated ; while we know 
from the evidence in the case, that no hypothecation of it whate- 
ver had been made, and it remained entirely at their own disposal. 
Thus the stock list of March 8th 1819, returned in obedience 
to the peremptory and pressing call of February 19th was false and 
deceptious, wilfully false and intentionally deceptious, in every 
important point to winch the call had been directed. We shall 
soon see how well it was seconded, by the Pay List by which it 
was accompanied. 

It will be recollected by the Court that these persons, for some 
reasons which they have not thought fit to explain, and we have not 
been able to discover, chose to represent their joint debt to the 
Branch Bank, as amounting to the precise sum of $1,540,000. In 



faj See page 76. 



220 

this stock list they had disposed of $645,400 f this sum, by plac- 
ing it to the account of loans on stock. The rest, consequently, 
was to be represented as a loan on personal security, or in the mer- 
cantile language, on bills receivable. For this purpose a "Pay last/ 9 
or a list of loans on personal security, was constructed at the same 
time with the stock list, and presented with it, by the Traversers in 
person, to the Parent Board, on the 16th March 1819. At the bot- 
tom of this pay list three notes were inserted, and consquently 
represented as notes discounted by the Board of Directors, in 
the usual way. One was for $251 ,250, and was stated to have been 
drawn by George Williams, and endorsed by S. Smith and Bucha- 
nan, for whom it was stated to have been discounted : one for 
$325,000 said to be drawn by S. Smith and Buchanan and George 
Williams, endorsed by James W. M'CulIoh as Cashier,- and dis- 
counted for S. Smith and Buchanan : and the third for $31 8,350-, 
drawn like the former by S. Smith and Buchanan and George 
Williams, endorsed by James W. M'CulIoh and discounted for S. 
Smith and Buchanan. These three notes amount to $894,600; 
and with the $645,400 attributed in the stock list to stock security, 
make up the total amount of $1,540,000, (a) which these persons 
ehose to represent, as the whole of their joint debt to the Baltimore 
Branch. 

Now it appears in full proof, that none of these notes had ever 
been brought before the Directors of the Baltimore Branch for Dis- 
count ; a d that two of them, the first and third, were absolutely 
fictitious. Thus an absolute and wilful falsehood was told to the 
Parent Board, by the production of this Pay List, which neces- 
sarilv represented all these notes as having been approved by 
the Branch Board. Two of them, like three of those on the stock 
list, were mere fabrications, to suit the occasion : and although one, 
that for $325,000, was a real note, yet the falsehood in relation to it 
was the same, in substance and effect. 

The essence of this falsehood consisted in representing this 
note, as a note which rested on such personal security, as the 
Branch Board had judged sufficient, and had consented to accept, 
by authorising the discount in the usual and regular manner; while 
in fact, as is fully proved, it had never been seen by the Board, 
but was dicounted by the parties themselves without its knowledge, 
as a stock note, under their assumed power over stock loans. 



(a) See page 85. 



1 feel rejoiced, may it please your honours, that but one remark 
remains to be added, to this loathsome and sickening exposure.-^ 
-It is short, but very important, in explaining the views and conduct 
of these persons. Recollect that James W. M'Culloh was the 
Cashier of the Baltimore Branch, appointed and removeable by the 
Parent Board. Reflect how indispensible it was to these persons, 
in the further prosecution of their plans, to retain him in his office. 
No frauds can be practised on a Bank, without the participation of 
the Cashier, or at least his connivance : which is generally secured 
by permitting his participation. Hence James W. M'Culloh, al- 
though acknowledged to have been wholly destitute of property, 
was admitted by these persons as an equal associate, in those vast 
and hazardous speculations, on which their ample credit, and real 
or supposed fortunes were staked, (a) Hence too his name as a 
borrower, either on stock or personal security, except to the very 
moderate amount of g3400, on a real pledge of stock at par, is 
withheld from both the lists in question. The real stock account 
of March 8th, 1819, exhibits him as a borrower on stock, to the 
amount of very nearly six hundred thousand dollars, (b) On the fic- 
titious lists of that date, laid before the Parent Board, his name does 
not appear as a borrower, except for the moderate sum of S3400, 
secured by a real pledge ; adequate and consequently not an ob- 
ject of censure or dissatisfaction. His associates take on their 
own heads the whole sins of the association, which could no longer 
be concealed, and strive to keep him out of sight ; in hopes that 
whatever may be their fate, his office, far more important to them 
than their own, may be left undisturbed. Comment on this fact 
is unnecessary ; because it could add nothing to the force or the 
clearness of the conclusions, to which every mind must be impel- 
led. 

I am very happy, may it please your honours, to be able to say, 
and I am sure that you with all your patience must be glad to hear, 
that I have now arrived at the last scene of this miserable drama. 
Its subject matter is furnished by the paper x ; the statement pre- 
sented by the Traversers in Philadelphia as their joint act, some 
time in March 1819. 

It is contended by my learned friends on the other side, that 
this paper was presented to the Parent Board, on the 16th of March, 
1819, with the stock and pay lists of the 8th of that month, and 



^aj See page 112. fbj See page 



was intended as an explanation of them. In support of this po- 
sition they rely on some expressions in the report, which was made 
on the 17th of May, 1819, to the Parent Board, by a committee 
composed of the members residing in Baltimore; (a) where this pa- 
per is mentioned as " the statement of Messrs. S. Smith & Buch- 
anan, George Williams and James W. M'Culloh, handed to the 
Board at Philadelphia," but the expression "handed to the Board," 
is to say the least of it vague and equivocal : since it does not spe- 
cify by whom the statement was handed to the Board ; whether by 
the parties who made it, or by the committee appointed on the 16th 
of March, 1819, to hear and report on their explanations and pro- 
positions, (b) If the subsequent committee did intend to state, in 
their report of May 14th, that the paper was handed to the Parent 
Board by these parties themselves, it would only prove that they 
made a mistake, in a fact which they cannot have supposed to be 
of any importance, and of which they might well be ignorant; since 
it does not appear that any of them were present when the first 
committee was appointed. They knew, by the reference of this 
paper to them among the other documents, that it had been laid 
before the Board, as a statement of the stock and stock debt of 
these parties : but whether presented by the parties to the Board, 
in the first instance, or first to the committee and by it to the 
Board, is a fact which though now of some importance, could 
not have appeared so to the committee of May ; who consequently 
cannot be supposed to have taken any steps to ascertain it. 

But it is, I apprehend, clearly impossible to believe, that this 
paper was presented by the parties to the Parent Board, on the 
16th of March, 1819, with the stock and pay lists of the 8th of that 
month. To present these three papers together, would have been 
the excess of folly and absurdity. The great and leading object 
of all the falsehoods contained in the stock and pay lists, indeed I 
may say the sole object with which they were so carefully and la- 
boriously fabricated by these persons, was to represent themselves 
to the Parent Board, as borrowers on stock to no greater amount 
than g645,400, out of g 1,540,000, and the remaining §894,600 as 
having been discounted for them by the Branch Board, on personal 
security, in the usual and regular way. For this purpose they sup- 
pressed some notes, and fabricated others ; till at length they com- 
pelled the lists to present this appearance. But the paper x flatly 



CaJ See page 108. fbj See page 93, 



323 

contradicts all this elaborate tissue of misrepresentations, and fair- 
ly confesses the truth, that the whole $1,540,000 consisted in loans 
on stock. It is, I apprehend, impossible to suppose, that men so 
intelligent as the Traversers, even in the very perplexing situation 
in which they found themselves, should have taken the trouble to 
fabricate two papers, for the express purpose of immediately con- 
tradicting them by a third, presented at the same moment. It is 
certainly a very singular explanation, which my learned friend 
imputes to his clients. He represents them as going post haste to 
Philadelphia with two lists in one hand, and one in the other. By 
the first two they say to the Directors of the Parent Bank, " we 
have borrowed on stock to the amount of only §645,400 ; which we 
had stock to secure, although we omitted to pledge it. The rest 
of our debt, amounting to §894,600, and making up the total a- 
mount of SI, 540,000 which we owe to you, was contracted by 
discounts on personal security, which the Branch Board granted to 
us in the usual way. At the same moment they present the third 
list, in the other hand, by which they say "this whole tale is a fa- 
ble, which we have invented for your amusement and our own : 
for the fact is, and so we wish you to understand, that the whole 
of our debt of gl,540,000 was contracted on pretence of stock se- 
curity alone ; which indeed we did not give, but the nature, situa- 
tion and extent of which, as we now propose to give it, this paper 
will explain." 

Away, may it please your Honours, with such pretences, which 
are unworthy of serious refutation, and scarcely deserve even to be 
laughed at. They are produced by the desperate exigencies of the 
defence; and sincerely do I pity men of sense and honour, when 
they find themselves obliged to rely on such arguments. The truth 
undoubtedly is, that the statement oo was an after thought of these 
persons, a final refuge, when they found themselves obliged to aban- 
don the stdR and pay lists. 

The minute of March 16th, 1819, (a) expressly states, that after 
the stock and pay lists had been presented, verbal explanations were 
offered and made by these persons; and that the whole subject, in- 
cluding of course the lists and explanations, was referred to a com- 
mittee. 

Before this committee tlien the parties would go with their lists, 
as a matter of course. It consisted of two eminent law vers, accus- 

(a) See page 90. 



iomed to the investigation of matters of fact, whom we may sup- 
pose from their situation as Directors, to be familiar with accounts 
and banking operations. There were also three mercantile gentle- 
men, with whom I am not particularly acquainted; but we are au- 
thorized to infer from their appointment as members of this com- 
mittee, that they were skilful accountants and bankers. "VN hat 
would be the language of such a committee to the Traversers, after 
inspecting the stock and pay lists, and enquiring into the matter? 
It would no doubt be expressed in guarded and civil terms; but it 
would amount to this: "Come come, gentlemen; these papers will 
not do. You must abandon all these subterfuges, and speak to us 
as men of sense and business; with whom you have to adjust this 
concern, as well as you can. Tell us the truth therefore, and let 
us hear what you can do." To this there was no reply. The truth, 
or something that might appear so to the committee and the board, 
must at length be told: and accordingly the statement x (a) was pre- 
pared and submitted to the committee, as the basis of an adjustment 
which the parties proposed to make. The committee receive it as 
usual, and as such refer to it in their report of March 30th, 1819, (b) 
of which though not named or referred to in terms, it is manifestly 
the basis. Let us bestow a few concluding remarks on this state- 
ment, which we shall soon find to be as destitute of truth as any of 
its predecessors. It indeed confessed the great truth, which could 
no longer be concealed, that the whole debt was contracted on the 
pretence of stock security. In some of the details it certainly was 
correct, and probably in others: but in some of them, and material 
ones too, I shall show it to be false. 

In the first place it represents their whole debt to the Baltimore 
Branch, as amounting to no more than §1, ^40,000. This is the to- 
tal of the several sums, represented as having been borrowed at the 
Branch, on the 13,026 shares hypothecated at par in the Parent 
Bank, on the 2,558 shares in the Baltimore Branch, on^r3,000 plac- 
ed in London and elsewhere at par, on 10,050 placed in New York 
and Liverpool at par, and on the whole mass of their stock, 47,398 
shares, at an advance beyond 125 per cent. Now we know that the 
joint stock debt amounted not to 81,540,000, but to §1,629,436 12, 
as appears by the real account of stock loans, as they stood upon 
the books of the Baltimore Branch, on the 8th of March, 1819. (c) 
This statement varied also from the amount of the stock notes, 

r a) See page 91. (b) See page 93. (c) See pages 83, 84. 



235 

actually delivered by James W. M'Culloh to his successor Mr. 
White,' on the 20th of May, 1819; which was $1,542,136 12, (a) 
Mr. White has explained to us how this sum was reduced to 
$ 1 ,540,000, at the particular request of M'Culloh, for the express 
purpose of making it agree with the statement presented at Phila- 
delphia. (6) It is easy to understand why they should wish to 
make the notes agree with the statement : but why they did not 
make out the statement in such a manner as to agree with the notes, 
is not so readily discovered. I shall presently offer some conjec- 
tures on the subject; but it is sufficient now to establish the fact, 
that in this particular the statement presented at Philadelphia was 
untrue. 

It is equally so. in another, of much greater importance. It 
states, expressly, that they had borrowed $318,350 at the Branch 
Bank, on the whole mass of their stock, at a rate beyond 1 25 per. 
cent; that this loan was made when stock was at $150 the share; 
and that its object was to secure the Branch from loss. This evi- 
dently refers to the exploded tale, of supporting Dennis A. Smith 
and the Mechanics' Bank, by making purchases of stock from him* 
which might enable him to pay his debt to that Bank, and thus ena- 
ble it in its turn to pay its debt to the Branch. We know that the 
debt from the Mechanics' Bank to the Branch had been greatly 
reduced, and the balance placed in a safe and satisfactory situation, 
long before the 5th of August, 1817, when the first of these stock 
loans was made. We also know that before the same epoch, the 
Mechanics' Bank itself was placed in a safe and easy condition, 
with " unimpaired credit." Consequently we know, that in this, 
particular the statement x is false. 

The sum fixt on for the amount of the loans made above 125 
per. cent, for this benevolent purpose, presents an enigma which 
I have in vain attempted to unravel. It is plainly an arbitrary 
sum : for it was just as easy to say that loans to any other amount 
had been made above 1 25 per. cent, as to the exact amount of 
S3 18,350. It is quite clear that it is not the true amount: for the 
stock notes delivered to Mr. White amounted to $1,542,136 12, ( a ) 
and the real amount of stock loans was $1,629,436 12. (c) This 
$318,350 is obviously the balance that remained, of what they 
Ghose to represent as their stock debt, after appropriating as much 
of it as they could, to stock security subject to their eontroul.-^ 



(V) See pages 38, 39. (6) See page 39. (cl Sec page 84. 
30 



226 

Consequently the larger they made the debt, the larger this balance 
would be. If they had stated the debt at its true amount 
8 1,629,436 12, the balance to be represented as a loan on the 
whole mass of their stock, at a rate above 81 25 to the share, would 
have been 8407,878 12 instead of 8318,350. If they represented 
the debt at 81*542,136 12, the amount of the stock notes delivered 
to Mr. White, this balance would have been 8320,486 12, instead of 
8318,350. In either case it would have been but to increase this 
balance, and say that it was taken on the whole amount of their 
stock, above 8125 to the share. One may easily conceive that it 
would be desirable to these persons, to make their stock debt ap- 
pear upwards of 889,000 less than it really was : but why should 
they wish it to appear less by so trivial a sum. as 82,136 12? If 
this sum of 82,136 12 had been added to the 8318,350 so as to 
make it 8320,486 12, it would have sounded just as well ; and the 
latter sum might as well have been taken above 8125 per. cent, and 
as easily justified, as the former. I have always believed, may it 
please your honours, that there was some connexion between this 
sum of 8318,350, and the final payment made in December 1817, 
by Dennis A. Smith, to the Mechanics' Bank. That payment a- 
mounted as he has stated himself, (a) in. about 8300,000. It was 
made in part by the transfer of promissory notes, of the Kimmels 
and other persons, to the amount of about 8105,000. I have al- 
ways supposed that these notes amounted in fact to 8123,350, in- 
stead of 8105,000 ; so as to raise the whole payment to this precise 
sum of 8318,350, which was thus assumed as the amount of loans 
above 125 per. cent, to give colour to the pretence that they were 
made to save the Branch Bank from loss. A late unpleasant oc ; 
currence in the Mechanics' Bank, has prevented me from making 
the enquiries which I intended, for the purpose of clearing up this 
mystery. Whether my conjecture on the subject be well founded 
or not, must therefore remain uncertain : but thus much is certain, 
that in alleging this loan of 8318,350 to have been made for the 
purpose of saving the Branch Bank from loss, as well as in the to- 
tal amount of loans upon stock in the Baltimore Branch, the state- 
ment oc like all its forerunners is false and deceptious. 

Permit me now, may it please your honours, to call back your 
attention for a few moments, to the wide field over which we have 
passed. Permit me to remind you of the charge preferred against 

(a) See page 125. 



these Traversers, by the indictment under consideration, and to 
present to your view a brief summary of the evidence adduced 
in its support. 

The indictment alleges in substance, that the Traversers frau- 
dulently combined to cheat and injure the Bank of the United 
States, by getting its property to a large amount into their posses- 
sion, through false and fraudulent devices and indirect means, for 
the purpose of keeping and using it two months, without paying in- 
terest, or giving any security for the repayment of the principal. 
Is this charge sustained by the proof? Such is the question which 
you are called on to decide. In deliberating on the answer to it, 
your honours may derive some assistance from a short recapitula- 
tion of the loading facts which have been established. I speak not 
of tiiose which may admit of controversy, of whicn indeed there are 
very few, but confine myself to such as have been clearly and in- 
controvertibl v made out. 

The first is, that these persons obtained from the Branch Bank 
in Baltimore, of which one of them was President and the other 
Cashier, the sum of SI, 581,336 12, between the 5th day of August, 
18 17, and the 14th day of November 18 18, under the name of stock 
loans: which sum they increased to g 1,629,436 12 before the 8th 
of March, 1819, by new loans of the same character. This is not 
doubted or denied. 

" It is-proved in the next place, that for none of these loans wag 
a single share of stock pledged, any where or in any manner ; and 
that the whole amount of stock which they have shewn a power 
in themselves to pledge, at any time during this whole period, 
would have covered only g645,400, rating it at 125 per. cent— 
This also is undenied. 
^ It is proved further, and not denied or doubted, that they 
made the whole of these vast loans to themselves, by their own au- 
thority, without the saction of the Branch Board. 

It is proved that they had no authority from the Parent Board 
for making such loans, or any loans whatever : nor is any such au- 
thority now pretended on their part. On the contrary it is ex- 
pressly admitted that they never had any. 

It is proved that while they were making these loans to them- 
selves, and for the purpose of preventing the Branch Board from 
inquiring into the subject, they asserted to the Directors individu- 
ally, and to the Board, that they had express authority from the Pa- 
rent Board to make such loans : which assertion, though undenia- 



328 

bly and wilfully false, had the intended effect, of preventing any 
interference on the part of the Branch Board. 

It is proved and not denied, that in all the books and state- 
ments laid by these persons before the Branch Board, where any 
mention was made of the^e loans or any of them, they were inva- 
riably represented as "Stock Loans;'" that is as Loans secured by a 
regular adequate and effectual pledge of stock, in the hands of the 
Cashier ; who was himself one of the persons making this represen- 
tation. 

It is proved and not denied, that the duty of taking the regular 
pledges of stock for such purposes, belonged solely to the Presi- 
dent and Cashier; and that it was the exclusive duty of the latter 
to keep possession of the stock pledged, with the documents effect- 
ing and proving the pledge. 

It is proved and not denied, that none of the books or state- 
ments laid from time to time before the Branch Board, and repre- 
senting these loans as "Stock Loans," made any mention whatever, 
or were required or expected to make any, of the Stock pledged 
to secure the loans or any of them, its situation, description or a- 
moimt : the whole of that matter being confided exclusively to the 
President and Cashier by the regulations of the Bank. 

It is proved that the regulations and orders of the Parent Bank, 
on the subject of stock loans, expressly require the stock to be ac- 
tually and formally hypothecated, in the hands of the Cashier ; and 
that where the loan granted on it exceeded its par value, two 
names, that is a drawer and endorser, " to be approved by the 
Branch Board" should be given for the excess. 

It is proved that about the time when the loans in question com- 
menced, it was suggested to the Branch Board, in the hearing of 
these persons, that as in stock loans the stock itself was the secu- 
rity solely relied on or regarded, it was an useless ceremony to 
bring them before the Board, and they might be safely left to the 
President and Cashier : it being clearly understood that stock, to 
the par value, was to be effectively pledged. 

It is proved that it never was intimated by these persons to the 
Branch Board, or understood by it in any manner, that they were 
in the habit of granting loans to any persons whatever, much less 
to themselves, without any pledge of stock, or beyond the par value 
of the stock actually pledged. 

From all which it clearly results, that when these persons caus- 
ed the notes in question to be placed as "stock notes," on the books 



£29 

and statements laid before the Branch Board, they represented 
them by that act as notes secured by an actual and effective pledge 
of stock, at par ; which representation they intended to make, and 
knew to be untrue. 

And thus it is clearly established, that they employed false pre- 
tences, and indirect means, with the fraudulent design of getting 
this money into their hands. This fraudulent design is further es- 
tablished, by the fact fully proved and not denied, that for the pur- 
pose of more effectually concealing these practices from the Parent 
Bank, and the Baltimore Branch, they deliberately made a false 
entry in the books of the Branch ; wrote false letters to the Parent 
Board ; withheld copies of those letters from the records of the 
Branch ; and deliberately made false returns to the Parent Board, 
in answer to its repeated and pointed calls, for correct information 
on this subject. 

In relation to the interest it is proved, and not denied, that they 
withheld at least SI 6,000, of interest, and included it in the re- 
newals of their notes, at a time when they had the most ample 
means of payment : that the whole of this sum remains to this mo- 
ment in effect unpaid, and it is irretrievably lost by their insolven- 
cy, together with a very large part of the principal : that they deli- 
berately included a further portion of interest, to the amount of 
S7000, at a time when they knew themselves to be utterly ruined : 
and finally, that after this irretrievable and hopeless ruin had over- 
taken them, they proceeded with a full knowledge of .their own sit- 
uation, to withdraw from the Bank under the same false pretences, 
and by means of the same fraudulent devices, the further sum of 
go 1, 000 ; which they applied to their own use, without the least 
prospect or hope, and consequently without the least intention, of 
paying principal or interest. 

And as to their sole pretence of justification or excuse for tak- 
ing this money, their plea that they took it to make purchases of 
stock from Dennis A. Smith, for the purpose of enabling him to 
pay his debt to the Mechanics' Rank, and thus to save that Bank 
from ruin, and enable it in its turn to pay the debt which it owed 
to the Baltimore Branch; it is undeniably proved by the dates of 
the several transactions, that their first and second purchases from. 
Smith were made in April 1817, at least five weeks before their 
stock discounts begun, the first of which was on the 5th of August 
in that year: and that before the third and last purchase, in De- 
cember 1817, nearly the whole amount of their vast loans to them- 



£30 

selves was completed: so that as relates to a very large part of 
these loans, there could not possibly have been any connexion be- 
tween them and the purchase from Smith. 

It has also been proved, that before the first purchase from Mr. 
Smith took place, he had made a payment to the Mechanics' Bank 
of §400,000, which removed ail apprehensions about its solvency, 
and placed it in a situation of "unimpaired credit :" and that he ef- 
fected this great payment, by means wholly unconnected with any 
purchase of stock, made from him by those Traversers. 

And as to the conspiracy it clearly appears, and is not denied 
or called in question, that throughout the whole transaction, and 
in all its parts, these two persons understood each other perfectly, 
had a common interest and a common object in view, and acted in 
concert for its attainment ; which is the most complete evidence of 
a conspiracy between them that can be required. 

Such may it please your Honours is the charge, and such the 
proof. Whether the proof supports the charge, is the question 
which you are to decide, under the sanction of your oaths, and on 
the basis of law fixt by the Court of Appeals. 



The counsel then proceeded to discuss a question of law, which 
had been raised on the indictment : whether the averment that the 
Traversers conspired to obtain this money from the Bank " for the 
purpose of having and enjoying the use thereof for a long space of 
time, to wit : for the space of two months, without paying any inte- 
rest, discount or equivalent therefor" was material and ought to be 
proved. He had endeavoured, he said, with what success it was 
not for him to determine, that this averment was not to be under- 
stood as meaning, that the Traversers did not intend ever to pay 
the interest ; but not to pay it regularly as it became due, or when 
the discounts were made ; in which sense it was unquestionably 
proved : and that even in its strictest and most literal sense, it was 
fully supported by the proof. He would now endeavour to shew 
that it was immaterial ; and consequently that whether it had been 
proved or not was wholly unimportant. 

For this purpose be laid down two positions : First, that the 
offence was complete without the averment; since it consisted in 
the fraudulent combination or conspiracy to get the money; and in 
no degree depended on the use which the conspirators intended to 



331 

make of it, or the manner in which it was their purpose to dispose 
of it, after it should come into their possession. This, he contend- 
ed was merely the inducement to commit the crime, and not the 
crime itself; of the definition or essence of which this inducement 
or object formed no part. In support of this position he cited, 

1. Leache's Crown Law, - - 276. The King, vs. Ecclees. 

2. Massachusetts Reports, - - 336. Judd's case. 

Ibid. - 536-8. Tibbett's case. 

The Opinion of the Court of Ap- 
peals, Appendix, - - 100. Macklin's case. 

Ibid. - 101. The King vs Benengen 

Ibid. - - 102. The King vs Gill & Henry. 

3. Chitty C. L. - - - 569, 308, 614, 615. 

Secondly, that the averment was consequently immaterial and 
impertinent, in a legal sense, and need not be proved. For this he 
cited, 

1. Chitty, 228, 233, 246. 

2. Leach, 594, Holt's case. 
2. Massachusetts' reports, 536. 

" w r hat is meant by substantial averments." 

2. Campbell, 582, 584, 646. 

lv Chitty 245-6. 
He also cited Hevey's case, 1. Leach, C. L. 234, and the case of 
Watson and others, 2. Campbell, 234, which might, he said, be sup- 
posed to countenance a contrary doctrine. But he would endea- 
vour to shew that they did not; and that if they did, they must 
yield to the authority of so many contrary decisions. 

In Hevey's case the point did not arise. It was a mere dic- 
tum. The averment was there clearly material ; because the fact 
averred was a constituent part of the offence, without which the in- 
dictment would have been clearly insufficient. The case in 2nd 
Campbell, 234 he insisted was very loosely and imperfectly report- 
ed: a mere nisi prius decision: and established this principle, if it 
could be understood as establishing any; that when a man was in- 
dicted for conspiring with three other persons by name, proof 
that he conspired with two of them only, without knowing any thing 

of the third, would not support the indictment. With the sound- 
ness of this principle he had nothing to do : since it clearly did not 
apply to the case before the court. 



23£ 

Mr. Mitchell argued in support of these positions and citetl, 

1 . Chitty, 1 69, 25 1 260, 294. 

2. Easte,P. C. 515,514,517,786-7-8,988. 

The Attorney General also supported them ; and made a new 
point. 

This averment, he said, was coupled in the indictment witli 
another: That they conspired to take this money, not only with 
intent to keep it two months without paying interest, but also with- 
out giving security for the repayment of the principal. 

He contended that the latter was clearly proved, and that it 
could not be necessary to prove both in such a case. lie cited, 

2. Leach, C. L. 702. 
2. Easte, P. C. 421. 
1. Leach, 477. 

Mr. Murray, on the same side, compared this case to the cases 
of indictments for a higher offence, under which conviction of an 
inferior offence may take place; provided enough be averred to 
shew that such an offence was committed : and he cited 

1. Chitty, 228, 233, 251, 252, 48, 54, 249, and 250. 

2. Leach, 594, and 

2. Massachusetts Reports, 536. 

Mr. Raymond, Mr. Kell and General Winder argued on the 
other side, and contended that the averment in question was not 
only material, but constituted the main pillar of the indictment : 
the hinge on which the offence turned. They reviewed at length 
authorities cited on the part of the prosecution, but adduced no 
new ones. The Attorney General replied and closed the argu- 
ment. 

The case being thus concluded on the 9th of April, the Court 
held it under advisement till the 11th, when Judge Hanson pro- 
nounced the decision of the Court; in which he stated that he and 
Judge Ward, the other associate, concurred. This decision was, 
that the Traversers were not guilty " in law or in fact ;" and 
that a judgment of acquittal must be entered. 

Judge Horsey, the Chief Judge, then declared that he dissent- 
ed from this decision, and proceeded to deliver the following opi- 
nion. 



233 
JUDGE DORSEY'S 



OPINION. 



It is my misfortune to differ in opinion again, from my brother 
Judges. On the argument of the Demurrer to the Indictment, it 
was my opinion, that the facts therein charged constituted an indict- 
able offence, under the principles of the Common Law ; and the 
Court of Appeals by an unanimous decision, have sanctioned my 
view of the case. And now, upon a full consideration of the testi- 
mony, I am prepared to say, that James A. Buchanan and James 
\V. M'Culloh, the Traversers, are guilty of the offence imputed to 
them by the indictment. The testimony delivered in t\\e cause, tho' 
voluminous, is simple in its results— The facts are not numerous, 
and most of them have been proved beyond all controversy. The 
Traversers together with George Williams are charged with a con- 
spiracy, fraudulently "by wrongful and indirect means, to cheat, de- 
•fraud and impoverish the President, Directors and Company of the 
Bank, of the U. States, and by subtle, fraudulent and indirect means 
and divers artful, unlawful and dishonest devices and practices, to 
obtain and embezzle" the money of the said Bank to the "amount of 
one million five hundred and forty thousand dollars," from and out 
of the Office of Discount and Deposit of the City of Baltimore, with- 
out the knowledge, privity, or consent of the President, Directors 
and Company of the Bank of the United States, and without the 
knowledge privity or consent of the said office, for the purpose of hav- 
ing and enjoying the use thereof for the space oft wo months, without 
paying any interest, discount or equivalent for the use thereof, and 
without securing the payment thereof to the said Corporation." 

What are the facts in the cause ? It has been most incontro- . 
vertibly established, that Buchanan and M'Culloh the Traversers 
up to the 12th of November 18i8, had taken from the funds of the 
Office of Discount and Deposit of the City of Baltimore, one million 
five hundred and forty thousand dollars, for the benefit of them- 
selves and George Williams in different proportions, on the repre- 
sentation that stock had been pledged to secure the repayment 
thereof to the Bank. This enquiry then necessarily presents itself: 
under what authority was this immense sum drawn from the Office, 
by the President and Cashier ; and was stock pledged for its reim- 
bursement ? By the 14th section of the Act incorporating the sub- 
scribers to the Bank of the United States, the directors are empow- 
31 



234r 

ed to establish Offices of Discount and Deposit, wherever they shall 
think fit within the United States, or the Territories thereof, and 
to commit the management of such Offices, and the business thereof 
respectively, to such persons and under such regulations, as they 
may deem proper, not being contrary to Law, or the Constitution 
of the Bank. The Directors of the Parent Board, in virtue of this 
power, established an Office of Discount and Deposit at Baltimore, 
of which James A. Buchanan was appointed the President, and 
James W. M'Culloh the Cashier ; and they also prescribed various 
rules for the government of the Offices, among which were the fol- 
lowing: — Article 14th. All bills and notes offered for discount, shall 
be laid before the Board of Directors, by the Cashier, on the days as- 
signed for discount, together with a statement of the funds and situa- 
tion of the Office, for their information. Article 15th. Discounts shall 
not be made on personal security, without two responsible names, 
(the firm of a House, being considered as one name only) ; but if 
stock of the Bank of the United States, funded debt of the United 
States, or such other property as shall be approved by the Board, 
be deposited and pledged to an amount sufficient to secure the pay- 
ment with all damages, one responsible name may be taken. Arti- 
cle 16th. On each application for discount, every Director who may 
be present, shall be held to give his opinion for or against the same ; 
and no discount shall be made without the consent of three fourths 
of the Directors present. And all bills and notes discounted, shall 
be entered in a book, to be called the credit book, in such manner 
as to discover to the Board at one view, on each discount day, the 
amount which any person is discounter, or is indebted to the office, 
either as payer or endorser". And the 22d Article prescribes, that 
"the President and Cashier of the Office shall take and subscribe an 
oath or affirmation, that they will, to the best of their abilities, per- 
form the duties assigned, and the trust reposed in them." Such 
were some of the general rules prescribed by the Parent Board, 
for the government of its Offices. I deem it unnecessary to notice 
the resolutions of the Parent Board of the 18th and 27th December 
1816, which have been given in evidence, as they were limited in 
their operation. By a resolution of the United States Bank, pass- 
ed on the 25th July 1817, the Offices of Discount and Deposit 
are empowered to grant loans on the notes of the borrower, payable 
to the Cashier, and secured by a pledge of stock of the Bank, or 
funded debt of the United States, at the par value thereof, equal to 
the amount loaned ; and the resolution further provides, that the 



235 

Weekly statement of such Offices, shall exhibit the amount of such 
loans, distinct from the amount of bills and notes discounted ; and 
that blank Powers of Attorney to transfer or sell the stock so 
pledged in conformity to powers used for similar loans obtained 
ui the Mother Bank, shall be transmitted to the Offices respectively. 
And by a resolution of the Parent Board of the 26th August 1817, 
it is declared to be expidient, that loans on the Stock of the Bank 
be extended to the rate of one hundred and twenty five dollars per 
share upon notes, to that amount, with "two approved names". 

By those two resolutions, no authority was communicated to the 
Presi dent and Cashier alone, to discount notes secured by the pledge 
of stock. The resolution of the 25th July declares that the Offices 
may grant loans on a nledge of stock at its par value, and the note 
of the borrower payable to the Cashier. As the pledge of stock 
at this rate, was considered as the efficient security, (without refer- 
ence to the solidity of the borrower) it would seem that the power 
of granting such discounts might have been confided without inju- 
ry to the institution, to the President and Cashier alone ; whose 
duty it would have been, to see that the stock was duly hypotheca- 
ted to secure the loan. But the resolution of the Parent Board of 
the 26th August emphatically requires, that Loans granted on the 
pledge of Bank stock, at the rate of one hundred and twenty five 
dollars per share, shall be further secured by two approved names: 
names to be approved by whom ? By the President and Cashier 
alone, or by the Directors in conformity to the 15th article of the 
Bye Laws; which prescribes among other things, that no discount 
shall be made without the consent of three fourths of the Directors 
present ? The pledge of stock alone, under the last mentioned 
resolution, was not deemed a sufficient security, for Loans on stock 
rated at one hundred and twenty five dollars a share ; personal 
security other than that of the borrower was required : the sceurity 
of two approved names. The sufficiency, therefore, of the personal 
security, in addition to the pledge of Bank Stock, was a matter of 
judgement and advisement : and the approval or rejection of such 
security was, therefore, necessarily referred to the Board of Direc- 
tors of the Branch, to whom it belonged to decide, and who were 
bound under the 15 th Bye law to decide, on the propriety of grant- 
ing the required discount. That the power to the President and 
Cashier of the Office of Discount and Deposit at Baltimore, to grant 
discounts on a pledge of stock, rating the share at one hundred and 
twenty five dollars, was not communicated by the resolution of the 



£36 

26th August I hold to be most manifest ; and that such an authori- 
ty was granted by the Board of Directors of the Branch (supposing 
them to possess the power of substitution, a question on which it is 
not necessary to give an opinion) is disproved by the testimony in 
the cause ; for none of the witnesses examined either on the part of 
the prosecution or the Traversers, pretend that this power was de- 
legated by the Board of Branch Directors, to the President and 
Cashier alone. And it is fully proved by several witnesses, who 
were Directors, that the Traversers, as President and Cashier, 
claimed the exclusive right of granting discounts on the pledge 
of stock, and that too under an authority derived from the Parent 
Board. But even supposing for the sake of the argument, that the 
Traversers honestly thought they alone, were invested with the power 
of granting discounts on the pledge of stock, still the question recurs, 
did they when they took from the vaults of the Branch one million 
five hundred and forty thousand dollars, under the pretence of stock 
loans, pledge stock to that amount, rating stock at gl25 a share ; 
or had they and George Williams the power of pledging stock at 
that rate, to secure the reimbursement of this large sum of money. 
That such a pledge was given is not pretended, although the reso- 
lution of the 25th July imperatively requires, that Powers of Attor- 
ney to sell and transfer pledged stock shall be executed. Had 
they, then, the power of pledging stock to this amount. 

By a statement made by the Traversers and George Williams 
to the Parent Board, in the month of March 1819, it appears that 
they were jointly interested in forty seven thousand three hundred 
and ninety eight shares, of the United States's Bank Stock, and 
and that eighteen thousand two hundred and ninety shares, part 
thereof, had been pledged to the Parent Bank for money borrowed 
at that Bank ; and that rating the said stock at one hundred and 
twenty five dollars per share, it might be subjected to a further 
hypothecation, of three hundred and twenty five thousand six hun- 
dred and fifty dollars, By the same statement it appears, that the 
same concern had in the Office at Baltimore, two thousand five hun- 
dred and fifty eight shares; which rated at §125 per share, would 
produce three hundred and nineteen thousand, seven hundred and 
fifty dollars; and this sum added to the former sum of three hun- 
dred twenty five thousand, six hundred and fifty dollars, would 
give the aggregate sum of six hundred and forty five thousand, four 
hundred dollars. The remaining twenty six thousand, five hun- 
dred and fifty shares, in which the Traversers and George Willi- 



23? 

Sims were jointly interested, were pledged in different amounts, at 
Boston, New York, London and Liverpool at par ; except tiiree 
thousand five hundred, which were hypothecated at Liverpool at 
gl 25 per share. Now it is most obvious, that the Traversers could 
not make an effective pledge of the shares, thus pledged at Boston, 
New York, Liverpool and London ; because the persons who had 
loaned money on them, were entitled to the certificates, and had 
a right to sell under the usual powers of hypothecation : And we 
shall see in the sequel, that this was the opinion of the Traversers, 
and that in point of fact, those shares were not pledged for the large 
sum of money which they drew from the Bank, under the name of 
Stock Loans. In this enumeration I have not included thirty four 
shares of stock, belonging to M'Culloh individually, and which were 
pledged for a discount of three thousand four hundred dollars, 
which he had obtained as a Stock Loan. From this view it evi- 
dently appears, that the Traversers and George Williams could 
only rightfully obtain on Stock Loans, six hundred and forty five 
thousand, four hundred dollars, valuing the stock at §125. How 
much had they received on the 12th of November, 18 1 '8, under the 
pretence of having pledged Stock ? The enormous sum of one 
million five hundred and forty thousand dollars at least, leaving an 
excess, for which they could not give Stock security, amounting to 
the sum of eight hundred and ninety four thousand, six hundred 
dollars. 

This amount was then taken by the Traversers, without authority, 
in defiance of the positive orders of the Parent Board, in violation of 
their duty as public officers intrusted with the general supervision 
of the concern of the Bank, and in fraud of the rights of the Stock- 
holders. The next enquiry is this, were those loans which they So 
profusely dealt out to themselves, without authority, and without 
the concurrence of the Directors, obtained by false and fraudulent 
pretences, and artful devices ? The Stock Notes discounted by 
the Traversers, for the benefit of themselves and George Williams, 
to tlie amount of one million five hundred and forty thousand dol- 
lars, were represented on the Offering Book, as notes discounted 
on a pledge of Stock, and the nett proceeds were carried to the cre- 
dit of the parties, and were placed upon the Discount Ledger or 
Credit Book ; which also represented the notes as Stock Notes, 
and exhibited the dates, the periods of payment, and the names of 
the drawers and endorsers. But neither the Offering nor the Cre- 
dit Book noticed the number of shares, on which the discounts were 



&3S 

represented to have been given. Here, then, is the most decisive 
proof, that the money was taken from the Bank under a false re- 
presentation, recorded in the Books of the Bank, that the amounts 
carried to their credit, had been obtained on a pledge of Stock ! 
"What language do those entries speak ? Why, that Stock had 
been hypothecated, to the amount of the loans, valuing it at a ]2§ 
per share ; or that an effective and available pledge had been made, 
in conformity to the instructions of the Parent Board, But this 
language was false, for the hypothecation had not been made, and 
the Traversers had not the power of making it— But the artful de- 
vices do not end here ; for the semi-weekly statement of the affairs 
of the Branch, made by the Cashier to the* Board of Branch Direc- 
tors, for their government and information, represented the above 
sum of one million five hundred and forty thousand dollars, toge- 
ther with the other sums really lent on a pledge of stock, to be se- 
cured by a Stock hypothecation ; and as one of those semi-weekly 
statements was transmitted to the Parent Board every week, the 
same representation was of course made to them. And thus by 
these artful devices, both Boards were grossly deceived, by those 
whose duty it was to give correct information. And it must be 
remembered, that by the resolution of the 25th July, this statement 
ought to exhibit the amount of Stock Loans, distinct from the 
amount of bills and notes discounted on personal security. It has 
been urged by the Counsel for the Traversers, that the Offering 
Book and the Credit Book were open to the inspection of the Di- 
rectors of the Branch Bank ; and that if they chose to look at them, 
they might have seen the amount of loans obtained by the Traver- 
sers. This is most true. But by such an inspection they could 
not have judged, whether an effective pledge of stock had been 
made; because although the Books describe the notes as Stock 
Notes, they do not intimate the number of shares that were hypo- 
thecated. They represent, to be sure, that an effective pledge of 
Stock had been given ; but they are silent as to the number of 
Shares that were pledged : And it is this false representation as 
respects the pledge, and this studied silence as regards the power 
of the President and Cashier to make the pledge, that furnish the 
most conclusive evidence of the fraud. Here, then, we have the 
two great characteristic badges of fraud : The suggestiori of false- 
hood and suppression of truth. 

That the Directors of the Office of Discount and Deposit never 
did sanction the discount of those pretended Stock Notes, is prov- 



239 

ed in my judgment beyond all controversy. They were not brought 
before the Board. The President and Cashier claimed the exclu- 
sive right of granting Stock Loans, on the ground that it was exe- 
cutive business, and as such confided solely to them. The period at 
which this assumption of power on the part of the Traversers com- 
menced, deserves to be considered ; as it will furnish strong evi- 
dence of their fraudulent design, to use the funds of the institution 
at their will and pleasure, without being subject to the controul of 
the Branch Directors, and in defiance of the resolutions of the Pa- 
rent Board. It was proved that until the 12th of August, 1817, 
stock notes, like other notes, were brought before the Board, for 
discount : but that on that day a note of Smith & Buchanan, for 
five hundred and forty thousand dollars, without an endorser, was 
discounted for them as a stock note : That on the 30th of August 
1817, the note of Hollins & M'Blair at ninety days, for two hun- 
dred and eighty thousand dollars, endorsed by Smith & Buchanan, 
was discounted for them, as a stock discount. On the 5th of Sep- 
tember, 1817, another large discount to the amount of one hundred 
and sixty five thousand dollars, was taken by Smith & Buchanan as 
a stock loan, on a note drawn by George Williams ; and in the same 
month, two other notes, amounting together to eighty six thousand 
five hundred dollars, were also discounted as stock notes for Smith 
& Buchanan. I deem it unnecessary to refer to other discounts 
of pretended stock notes, as those already stated fully develope 
the motives, which induced Buchanan, in connection with M'Culloh, 
to claim the exclusive right of granting stock discounts. M'Cul- 
loh's stock discount operations did not commence so early. His 
first stock discount took place on the 5th September, 1817 ; the se- 
cond on the 7th of October, in the same year ; and the third on the 
23rd October ; and other stock loans were taken from time to time, 
to suit his convenience — Hence this unwarrantable assumption of 
power ! ! 

The Parent Board by its resolution of the 20th October, 1818, 
requires the Cashiers of the respective Offices, to lay before that 
Board a statement of the existing discounts upon notes, for the 
payment of which public or corporate stocks of any kind may have 
been pledged, together with the list of the notes, the names of the 
drawers and endorsers, and the amount and description of the 
stock pledged for the payment of the notes respectively. 

On the 26th of October, 1818, M'Culloh writes Jonathan Smith, 
the Cashier of the Parent Bank, that he has "directed the lists of 



240 

discounts granted here (meaning Baltimore) upon the pledge of 
stock, and personal security, to be made up, and as soon as it can 
be conveniently furnished, it shall be forwarded to you." 

On the 9th of the succeeding November, he says in his letter 
to the Cashier of the United States Bank, "I am preparing a list of 
borrowers upon stock at this Office, which you will receive next 
Tuesday: The delay in furnishing this list correctly, arises from 
a necessity to examine these loans for some time back, as entries 
have been some times debited to loans on stock, which should have 
been to bills on personal security, and vice versa." On the 14th 
of November, 1818, M'Culloh drafted the following entry, and di- 
rected Mr. Rutter a clerk in the Office, to copy it into the day 
book. " Bills receivable to Loans on Stock Dr. for this sum being 
amount that had at various times been charged as lent upon the 
hypothecation of stock at this Office, but which should have been 
charged to Bills Receivable, as ascertained by making up a list of 
the loans existing upon stock, hypothecated here and at the Bank of 

the United States 8852,683 64." Here let me ask why was 

this entry made ? Was it to correct errors that had actually oc- 
eured ? There is no pretence for such a suggestion. The Books of 
the Bank, which have been carefully examined, show that the dis- 
counts on personal security. and stock notes, had been correctly 
recorded— Nay the Traversers have not attempted to prove that 
the entry was correctly made. Why then was it made ? It was 
fabricated, to give a false character to transactions, originating in 
the wilful and fraudulent violation of duty : It was designed to 
conceal from the Branch and Mother Boards, the real amount which 
had been discounted under the pretence of hypothecated stock : it 
was, in fine, resorted to as a device, by which the Directors of the 
Parent and Branch Institutions were to be hoodwinked. For it 
must be remembered, that the effect of this false entry was to di- 
minish, by §852,683 64, the line of stock discounts on the statement 
book, and to increase to the same amount the line of discounts on 
bills or notes. Here again the Branch and Parent Boards were 
deceived, by the representation that nearly $900,000 had been dis- 
counted on personal security, when in truth, this sum had been 
taken under the pretence of hypothecated stock. The resolution 
of the 20th of October, 1818, also enjoins the Cashiers of the Offices, 
to require from those who had borrowed, at a rate exceeding the 
par value of stock, a reduction of twenty five per. cent, of sucli 
excess, every sixty days, until such excess shall be extinguished, 



£41 

or to pledge an additional amount of funded debt or stock of the 
Bank, at the par value thereof, as shall be equal to the amount of 
such excess. Yet we find that on the 12th of November, ensuing, 
the discounts of M'Culloh, Buchanan and Williams on colorable 
stock notes had been augmented by several thousand dollars. — * 
And notwithstanding this, M'Culloh writes to the Cashier of the 
Parent Board on the 14th of the same month, that he has "the sa- 
tisfaction to believe, that whatever has been lent at this Office, is 
perfectly will secured, and that the reduction in the amount of the 
stock loans recently required, will be accomplished without any 
loss to the institution, and most probably within sixty days." The 
Parent Board, then, order a reduction of loans on stock, really 
pledged beyond its par value. The President and Cashier of the 
Office at Baltimore, in the face of this order, increase their dis- 
counts, on the false pretence of having pledged stock ; and two 
clays afterwards the Cashier of the Branch informs the Cashier of 
the Parent Board, that the order of the latter will be complied 
with ! ! 

Again: M'Culloh on the 14th January, 1819, discounts eleven 
thousand dollars on his note endorsed by Smith & Buchanan, which 
is represented on the book as a stock note, and on the same day he 
discounts twenty thousand dollars on his note endorsed by the 
same persons ; and this too is represented to be a stock note. And 
it must be borne in mind, that the former of those two discounts, 
constitutes no part of the one million five hundred and forty thou- 
sand dollars. Further : the Parent Board, by its resolution of the 
22d January 1819, declares, that "no discount shall be made or re- 
newal on stock or any other discount, or in substitution of a note 
or hypothecation made or renewed at this Bank, or any of its Offi- 
ces of Discount and Deposit, without each discount or renewal be- 
ing first presented to the Board of Directors of this Bank or its Of- 
fices, as the case may be, and approved by the Board of Directors, 
agreeably to the bye-law." And by a resolution of February 1st, 
in the same year, the Parent Board declare " that no new loans shall 
be made on stock of any kind, at this Bank or any of its Offices." 
But we find that Buchanan in defiance of those imperative orders, 
on the third day of March 1819, discounts as a stock loan, a note 
drawn by George Williams, in favor of Smith & Buchanan, for 
twenty thousand dollars. This note was a renewal of one which 
had been previously discounted on personal security. This re- 
newed note was not brought before the Board of Directors, "to be 
3£ 



approved or rejected by them," but after passing through the cru- 
cible of false representation, it was changed into a stock note, and 
produced the desired effect. This discount, too, was entirely un- 
connected with the great loan of one million five hundred and forty 
thousand dollars. Can cases of more palpable and gross fraud be 
presented to the human mind ? 

The resolution of the Parent Board of the 19th February 1819, 
required the Cashier of the Office of Discount and Deposit at the 
City of Baltimore, to transmit to the Parent Board, " a list of all 
the notes then discounted at that office, with the names of payer 
and endorser on each note, designating in the list, all notes which 
were discounted with an hypothecation of Stock, for securing the 
payment of such notes, and also designating the kind of Stock, and 
the rate at which it had been hypothecated, together with a copy of 
the Instruments of writing by which the hypothecation had been 
made." In obedience to this Resolution the Cashier, in the begin- 
ning of March, prepared a Stock list and Pay list, which were soon 
afterwards laid before the Parent Board. By the term pay list, 
was meant the list of notes discounted on personal security alone. 
By the stock list James M'Culloh was represented as a borrower 
to the amount of three thousand four hundred dollars only, on 
thirty four shares, which he owned in his individual right. Smith 
& Buchanan were represented as having borrowed on their two 
notes, endorsed by George Williams, and secured by a pledge of 
stock, two hundred and thirty five thousand, three hundred and 
seventy five dollars ; and George Williams was therein stated to 
have borrowed four hundred and ten thousand and twenty five 
dollars, on two notes ; one drawn by George Williams and endorsed 
by A. A. Williams for two hundred and twenty one thousand 
eight hundred and twenty five dollars, and the other drawn by 
George Williams and endorsed by. Smith & Buchanan, for one 
hundred and eighty eight thousand one hundred and fifty dollars. 
The whole amount secured by a pledge of stock. It cannot but 
be remarked, that the loans thus represented to have been made 
to Smith & Buchanan and George Williams amount to the sum 
of six hundred and forty five thousand four hundred dollars ; be- 
ing the precise amount which they and M'Culloh could borrow on 
their Bank Stock, valued at one hundred and twenty five dollars 
per share. 

And a most singular feature in this fabricated list is, that all 
the stock notes therein mentioned, except the note of ninety seven 



thousand eight hundred and seventy five dollars are fictitious. As 
one million five hundred and forty thousand dollars had been 
drawn from the Office, under the color of stock notes, discounted 
for Smith and Buchanan, M'Culloh and Williams ; and as the stock 
list laid before the Parent Board, only shewed six hundred and 
forty seven thousand four hundred dollars, to have been borrowed 
on the hypothecation of stock ; it became necessary to carry the 
difference between taose two sums, to wit. the sum of eight hun- 
dred and ninety four thousand six hundred dollars, to the pay list i 
and by this list three notes, amounting to that sum, are represented 
as having been discounted by the Directors of the Office, on per- 
sonal security, when in fact no such notes were ever brought be- 
fore them. Two of them were fictitious, and the other amounting 
to three hundred and twenty five thousand dollars, had been dis- 
counted by the Traversers for Smith and Buchanan, as a stock 
note, and constituted part of the stock debt of one million five hun- 
dred and forty thousand dollars. In a word, by this singular and 
fraudulent process of fabrication, used for the purpose of concealing 
the malversations in office of the President and Cashier, the stock 
Loans of Smith and Buchanan, M'Culloh and George Williams 
are represented as amounting only to the sum of $645,400 ; which 
sum could have been secured by an effective pledge of stock at 
gl 25 the share : but as § 1,540,000 had been taken from the Bank 
under the false representation that stock had been pledged, the dif- 
ference amounting to the sum of §894,600 is represented by the pay 
list, as having been discounted on three notes by the board of Di- 
rectors ; every syllable of which is untrue : for one of the notes, to 
wit. that of §325,000, was a stock note on which part of the great 
sum of §1,540,000 had been obtained ; and the other two were fic- 
titious, and the amounts assumed for the purpose of ekeing out 
the sum of §894,600. And in addition to all this, M'Culloh's stock 
discounts are presented by the stock list, as amounting only to the 
sum of §3,400 ; although his proportion of the §1,540,000 amount- 
ed to the sum of §574,001 01. It has been proved that Smith and 
Buchanan, M'Culloh and George Williams stopped payment in the 
month of May 1819; that they are insolvent; and that a large a- 
mount of their discounts, on stock notes, has been entirely lost to 
the United States Bank. 

On all the proof, I am satisfied, that the offence charged by the 
indictment has been fully established. A large sum of money has 
been taken from the funds of the Bank by the Traversers, under 



344 

felse representations, and in violation of a sacred trust : and to Gon- 
ceal the fraud, the records of the Bank have been falsified, and the 
Directors deceived by false statements, made for the express pur- 
pose of deceiving. Why did the Traversers resort to the fraudu- 
lent misrepresentations, and the false pretences which have been de- 
tailed in testimony, if their motives were pure ? How has it hap* 
pened that almost every step in their stock discounts has been em- 
phatically marked with the suggestion of falsehood and the sup- 
pression of truth : why were those peculations on the Bank contin- 
ued to a period, when all expecttaion of reimbursement was hope- 
less ? In the months of January and March 1819, when an amount 
of 83 1,000 was taken on the pretence of stock loans, in addition to 
the gl, 540,000, the affairs of Smith arid Buchanan, George Williams 
and M'Culloh were desperate ; as has been proved by the depression 
of Bank Stock, and their subsequent insolvency : under all these 
circumstances, I do not feel myself at liberty to say, that the De- 
fendants did not confederate to embezzle the funds of the United 
States Bank. The highest Law Tribunal in Maryland has decid- 
ed, that a conspiracy to defraud is an indictable offence. If the 
facts proved in this cause, do not establish a confederacy to defraud, 
the title of conspiracy may be expunged from the penal code; as the 
offencecannot be proved in any case, except where the parties charg- 
ed had promulgated their design to commit the fraud. 

It has been urged on the part of the defence, that there is no 
proof that the Traversers did not intend to pay the principal and 
interest. Have they paid it ? If they had the power of paying it 
and did not pay it, the circumstances under which the money was 
fraudulently taken from the Bank, furnish the most irresistible 
proof that they did not mean to pay. If they fraudulently embez- 
zled the money, when they knew that they could not return it, it 
would be a waste of time to talk about their intention of repaying. 
And in a case like this, where the whole transaction which is the sub- 
ject of the present prosecution, was concocted in fraud, concealed by 
a tissue of false entries, deceitful representations and artful devices, 
and terminated in loss to the parties defrauded, how can it be in- 
ferred, that the Traversers were actuated by honest intentions, and 
meant to do that which they have not done ? 

On the part of the Traversers it was urged, that Dennis A. 
Smith, at the time he suspended his payments was indebted to the 
Mechanics' Bank between 8800,000 and 8900,000 : That the Me- 
chanics' Bank then owed to the Office of Discount and Deposit a- 



245 

Iboiit $800,000 ; and that the great stock purchases made by Smith 
and Buchanan, M'Culloh and George Williams of Dennis A. Smith 
(and which occasioned their insolvency) originated partly in the 
generous design, of securing the debt due from the Mechanics' 
Bank to the Office ; as the proceeds of the sale enabled Dennis A. 
Smith to discharge his debt to the Mechanics' Bank, and by 
this operation, the Mechanics' Bank had it in their power to liqui- 
date the balance against them with the Office. A6 this statement 
has not been proved, it is unnecessary to enquire what would have 
been its effect, if it had been proved. On the 24th April 1817, a 
secret committee, consisting of members from each Board, confer- 
red on the subject of the debt due from the Mechanics' Bank to the 
Office; and it was then agreed that the Mechanics' Bank should 
pay over to the office $250,000, in bills receivable, (which had been 
assigned to it by Dennis A. Smith J together with the notes of Col. 
Mosher (he then being President of the Mechanics' Bank) for about 
three hundred thousand dollars ; and that the balance, which did 
not exceed the usual accommodation given to the City Banks by the 
Office, -should remain on interest. Dennis A. Smith previous to 
this arrangement had assigned to the Mechanics' Bank 8150,000 
in bills, in addition to the §250,000 which were passed to the Office; 
and it was proved that the negociable bills thus assigned by Smith 
to the Mechanics' Bank, were bottomed on the sale of Merchan- 
dize, and have no connexion with any stock speculation. Whe- 
ther the first sale of stock by Dennis A. Smith to Smith and Bucha- 
nan, M'Culloh and George Williams was anterior to this arrange- 
ment, does not appear. The second sale was made in June, and 
the third in December 1817. On the 25th April 1817, the day af- 
ter the conference of the committee, James A. Buchanan, the Presi- 
dent of the Office informs William Jones Esquire, the President of 
the United States Bank, by letter, of the arrangement that had 
been made the preceeding evening with the Mechanics' Bank ; and 
observes that "a full, free and unreserved interchange of opinion 
took place, the result of which is a satisfactory conviction to our 
minds, that the Mechanics' Bank can sustain no loss from Mr. Smith. 
The Committee from that Bank will continue to give unremitted 
attention to its concerns, and we entertain no apprehension for its 
safety." And on the 23d of June 1817, M'Culloh informs the 
Cashier of the United States Bank, that "the Mechanics' Bank had 
made an arrangement to pay its debt to this Office, by a sale of ster- 
ling and six per cents at Boston;" and on the 31st of October 1817, 



us 

Buchanan writes the President of the United States Bank, that the 
"Mechanics Bank is of unimpaired credit, and we have reduced 
the very heavy debt due to us, to almost nothing." The notion 
therefore that the immense purchases of stock from Dennis A. 
Smith, were made with the view of securing the debt due from the 
Mechanics' Bank to the Office of Discount and Deposit, is unfound- 
ed. Can it be believed that those persons would engage in such ex- 
tensive and adventurous speculations, amounting to millions, with 
the generous motive of paying a debt due to the Office of Discount 
and Deposit ? If this was their design, why not avow it ? Why 
resort to all those fraudulent devices, which have been detailed in 
testimony, if their object was so noble, so disinterested ? The pre- 
tence set up by the Traversers, that the- Committee on the part of 
the Office sanctioned those speculations, with a view to benefit the 
Office, has been disproved. For these reasons and others, I am of 
opinion that the Traversers are guilty. 



JUDGE HANSON then delivered a written opinion, as that 
of himself and Judge Ward, in which he supported at length the 
decision which they had pronounced. As this opinion was not ta- 
ken down fully at the time, and Judge Hanson has not deemed it 
proper to furnish a copy for insertion in this report, it cannot be 
given at length. He was understood to state in substance ; " That 
the Traversers were charged by the indictment, with having taken 
this money fraudulently, with intent to keep and use it two months, 
without paying interest : That this intent therefore was a mate- 
rial part of the charge, and must be proved : That as they had 
charged themselves with the loans, in the books of the Bank, at the 
time when they were taken, and had then a prospect of being able 
to repay principal and interest, it appeared that they did then in- 
tend to repay principal and interest; at least there was nothing to 
prove the contrary, which must be proved : That their subsequent 
disappointment, by the failure of their speculation, and their con- 
sequent ruin, could not convert that into a crime, which was not 
one at the time of doing it: and that the measures to which they 
afterwards resorted, for the purpose of concealment, could make no 
difference in the case; since the act was to be judged of by the 
views and intentions with which it was done, and not by any thing 
which subsequently took place." 



247 

He concluded with declaring it again to be the opinion of the 
court, that the Traversers were not guilty in law or in fact, and 
that a judgement of acquittal must be entered : which was accord- 
ingly done. 



George Williams, who was included in the same indictment, 
but had not been put on his trial with the other two Traversers, be- 
cause he was absent through sickness when the trial commenced, 
then appeared, plead not guilty, and put himself upon the court for 
trial. He was acquitted as a matter of course ; because one person 
alone cannot be guilty of conspiracy : and as the, other two were ac- 
quitted, he alone remained under the indictment. Justice to him re- 
quires it to be stated, that he did not appear from any part of the 
evidence, to have had any actual agency in the transactions with 
which his name was connected, or any knowledge at the time of 
the very reprehensible means employed in carrying them on. In- 
deed there was proof, that when the practice of discounting notes* 
without submitting them to the Directors, came to his knowledge, 
he expressed strong disapprobation of it, and declared it to have 
been done contrary to his intentions and wishes. The counsel for 
the prosecution took occasion to declare, that his case had been 
viewed by them from the first, in a much more favourable light than 
that of the other Traversers, and that they had always understood 
and believed that he had lost a very ample fortune by these most 
reprehensible speculations, in which they regarded him as a dupe 
rather than an accomplice. It is therefore highly probable, that 
had he been put on his trial, he would have been acquitted on the 
merits of the case. 



SECOND INDICTMENT. 

THE case of the stock notes being concluded, the next indict- 
ment was called. It was against James A. Buchanan and James 
W. M'Culloh alone ; and contained a special and a general count 
The first charged, in substance, that on the 31st of January 1819 
these two persons, one of them being President and the other Cash- 
ier of the Office Discount and Deposit of the Bank of the Unit- 
ed States at Baltimore, fraudulently conspired and combined toge- 
ther, by wrongful and indirect means, to cheat and injure the Bank; 
for which purpose James W. M'Culloh fraudulently and secretly 
delivered to James A. Buchanan, and he fraudulently and secretly 
received, certain bills of exchange to the amount of £6,080 sterling, 
or $27,022 22 the property of the Bank, which M'Culloh as Cash- 
ier of the Baltimore Branch had received in payment of a debt, due 
to it from the Farmers and Mechanics' Bank of Georgetown, and 
then held in his capacity of Cashier. 

These bills of Exchange were charged by the indictment, to 
have been thus delivered by M'Culloh, and received by Buchanan, 
with intent to enjoy the benefit and use of them four months, 
without the consent or knowledge of the President and Directors 
of the Bank of the United States, or of the Baltimore Branch ; and 
without giving any security for the repayment of their value. 

The first count further alleged, that M'Culloh in pursuance of 
this conspiracy, and for its more effectual perpetration and conceal- 
ment, did with the knowledge privity and consent of Buchanan, 
cause false and fraudulent allegations representations and state- 
ments to be made, and laid before the Directors of the Baltimore 
Branch ; in which the Farmers' and Mechanics' Bank of George 
Town was designedly represented as still owing the debt 
for which these Bills of Exchange had been sent to him in pay- 
ment; and did also with the knowledge privity and consent of 
Buchanan, cause and procure that no entry of the receipt of these 
Bills of Exchange, or their delivery to Buchanan, should be made 
in the Books of the Branch Bank, nor any credit given for them 
to the Bank at Georgetown. 



S49 

The second count charged them with a conspiracy, by wrong- 
ful and indirect means, to cheat defraud and injure the Lank of 
the United States, by getting into their possession and embezzling 
its property to the amount of g>50,000 in money or Bank notes, 
by means of fraudulent and unlawful devices. 

The parties appeared and plead not guilty to this indictment, 
and put themselves upon the court for trial, as in the preceeding 
case. To save time and trouble it was agreed, by the Attorney 
General and the counsel for the Traversers, that all the testimony 
adduced in the former case, should be considered as in evidence in 
this, so far as it might be thought applicable by either party. The 
Attorney General then proceeded to open the indictment, and pro- 
duce additional testimony under the first count. 

He first gave in evidence two letters from James W. M'Cul- 
loh, in his official character as Cashier of the Baltimore Branch 
Bank, to Clement Smith, Cashier of the Farmers' and Mechanics' 
Bank of Georgetown ; one of which bore date on the 1 8th of Novem- 
ber, 1818, and the other was without date, but had the post mark 
of November 20th. These letters were admitted to be in the 
handwriting of M'Culloh, and under his signature. 

He also produced and read in evidence copies of the answers 
of Clement Smith to these letters, which had been admitted in e- 
vidence by the Traversers, before the trials commenced, to save 
Mr. Smith the trouble of attending in person to prove them. The 
letters and answers are as follows* 

" Office of Viscount and Deposit, Baltimore, 18th Nov. 1818: 
Dear Sir, 

It is stated to me that you are indebted to this Office about 
$$30,000, after giving credit for collections to be made for you here 
in all this month. 

When I last had the pleasure to see you here, you proposed 
placing me in funds by sterling bills to be sold for you here, but I 
have not since had the pleasure to hear from you on this subject. 

It will, my dear sir, be indispensably necessary for you to face 
your drafts on me in future before they appear. To meet them, 
even then, will often place me in a very unpleasant attitude with 
my neighbours, for as coin is uniformly required by the holders of 
your checks, I shall have in turn to call for it of Banks that owe 
me. A continuance of this intercourse cannot I apprehend be of 
any real advantage to vou, and must often place me in an unplea 
33 



&5Q 

sanfc situation with my neighbours. An understanding might I 
imagine be had by you with some state banks without subjecting 
them to the same calls for coin by the holders of your checks, on 
them you might check payable in current notes perhaps 

I wish you to take measures to place me in funds for the pre- 
sent debt with as little delay as possible. 
Truly Your's, 

J. W. M'CULLOH, Cashier. 
Cement Smith, Esq. Cashier Farmers' and Mechanics' Bank of 

Georgetown, District Columbia." 

" Farmers 9 and Mechanics 19 Bank of Georgetown, Nov. 19, 1818. 
Dear Sir, 

Your esteemed favour of the 18th inst. is received — enclosed 
I hand as per statement below £6080 sterling, which 1 should be 
glad to have placed to my credit if it can be done at par. If that 
cannot at this time be done, I should prefer to hold them for a few 
days, under a hope of an improvement in price. I however only 
ask this on condition of your perfect convenience. I also enclose 
in the notes of the Branch here, g 15,000 with which I must beg 
you to credit my account ; about $25,000 of my debt to you has 
grown out of operations for the use of that Office. I had also 
promised to pay for them in Baltimore, the further sum of from 
5 to $6000, if it should be necessary, I must beg the favour of yon 
to advance that amount in any of the notes of Baltimore to Mr* 
Mackall, and charge it to my account. I had hoped from the man- 
ner in which my checks were drawn, that they would not have 
proved so unfriendly to you. 

Most duly, dear sir, 

Your friend and ob't servant, 

C. SMITH, Cashier. 
J. W. M'Culloh, Esq. Cashier. 

Bills of Exchange drawn by W. Smith on W. & J. Hoffman, 
London. 



No. 71 


700 


72 


80O 


74 


1050 


76 


1200 


77 


1250 




£5000 



251 

Brown & Kurts on W. Murdock, 

London, No. 18 900 

Frs. Lowndes 90} 

J. Lowndes 90 \ 



180 



£6080 

State vs. Buchanan and M'Culloh. 
It is agreed that the within shall be received in evidence in the 
above case as a letter written by Clement Smith, Cashier of the 
Farmers' and Mechanics' Bank of Georgetown, to James W. 
M'Culloh Cashier, of the Office of Discount and Deposit of the 
Bank of the United States, established at the City of Baltimore, 
which letter was received by said M'Culloh, soon after it bears 
date. 

WM. H. WINDER, Attorney for 

Traversers. 
THOS. B. DORSEY, Attorney Gene- 
ral of the State of Maryland. 
"My Dear Sir, 

I have received your letter by Mr. Mackall, and after passing 
the 15,000 Washington Branch notes to your credit, have sent 
them by him down to Richard. 

This is an operation that I cannot repeat. If he borrows of 
you, he must pay you, and at home. If his own resources are not, 
under present regulations, adequate to all the calls made upon him, 
the sooner he writes unreservedly to Jonathan Smith on the sub- 
ject of a change and aid, the better. 

I gave Mr. Macall $4000 as you requested and charged you 
therewith. 

There is no probability of sterling bills improving, on the con- 
trary they must continue to decline. They are not really worth 
more than 95 cents now, although they are selling at 98 cents.— 
I will keep yours until Tuesday and then offer them for sale unless 
by return mail you request me not to do so. 

Things will grow worse every day, unless the national govern- 
ment can apply some remedy. 

Present efforts to linger out a miserable experiment are worse 
than useless, to many they are destruction. 
Truly Your's, 

J, W. M'CULLOH, Cashier, 
Clement Smith, Esq. Cashier Farmers' and Mechanics' Bank, of 
Georgetown," 



%%% 

"Farmers' and Mechanics' Bank of Georgetown, Nov. 21, 1818, 
My Dear Sir, 

I have received your letter of the post mark 20th inst. 

Your account has credit for the $4000 which you were so good as 
to advance Mr. Mackall for me. With regard to the exchange, I 
leave it entirely to yourself, I know you will do the best you can 
with them and, T shall be content— they are quoted I understand 
at New York at 99 to 99$. S 

Very truly and sincerely 
Your ob't servant, 

C. SMITH, Cashier. 
J. W. M'Culloh, Cashier^ 

State vs. Buchanan and M'Culloh. 
The same admission made as to this letter as of the letter of 
the 19th November, 1818. 

WM. H. WINDER, Attorney for 

Traversers. 
THOS. B. DORSEY, Attorney Gene- 
ral of the State of Maryland. 

He also produced and proved a letter from James W. M'Cul- 
loh to Clement Smith, bearing date on the 3rd of December, 1818, 
from which he read the following extract, the other parts of the 
letter not having any connexion with this subject. "I have not 
received any account of sales of your sterling which I sent to New 
York for sale, but as it will probably be put off in New York or 
Philadelphia, in a few days at the current rates, you are at liberty 
to consider me as in funds for its probable proceeds." 

John White the present Cashier of the Branch Bank at Balti- 
more, was then called, sworn and examined on the part of the 
state. He proved that after he came into office as Cashier, on the 
20th of May, 1819, careful and diligent search had been made in the 
Branch Bank at Baltimore by his orders, for the letters from Cle- 
ment Smith in relation to the transmission of the Bills of Exchange, 
but no such letters nor any trace or memorandum of them could 
be found. The letter book of the Branch Bank of that period, was 
then produced proved and inspected. It was found to contain no 
copy nor memorandum of M'Culloh's letters of ^November 18th 
and 20th 1818, to Clement Smith; and Mr. White proved that no 
trace or memorandum of them was found in the Bank at any time 
after he came into office. 



353 

He also produced and proved from the letter book of the Bal* 
timore Branch, the copy of a letter from him to Clement Smith, 
bearing date on the loth of June, 1819, which was given in evi- 
dence by the Attorney General without objection, and is as follows. 

( COPY.) 

" Ojjice Bank United States, Baltimore, June \Oth t 1819. 
C. Smith, Esq. Cashier, 
Sir, 

I am favoured with your letter of the 8th inst. The Far- 
mers' and Mechanics' Bank of Georgetown appears upon the 
books of this Office to be indebted §27,037 42 to this institution. 
Examination has been made amongst your letters, about the 
period you mention, and we can only find one of the 28th Novem- 
ber, which makes allusions to Bills of Exchange, and that in a very 
distant manner. 

I cannot find any record on the books of this Office of a sale 
having been made of the £6080 sterling upon your account. 
I am very respectfully, 
Your obedient servant, 
(Signed) JOHN WHITE, Cashier" 

He then proved, that in consequence of the receipt of this let- 
ter, Mr. Smith had transmitted to him McCulloh's letters of Novem- 
ber 18th and 20th, 1818, and the copies of his answers, dated No- 
vember 19th and 21st, 1818 ; all which had already been given in 
evidence 

The books of account of the Baltimore Branch of the same pe- 
riod were next produced proved and examined, and were found to 
contain no entry memorandum or notice of any kind, in relation 
to the Bills of Exchange mentioned in the letter from Clement 
Smith of November 19th, 1818, or any of them. 

Mr. White also proved, that after he came into office, and 
he thinks about the 5th of June, 1819, enquiry being made of 
James W. McCulloh for information, on the subject of the balance 
appearing to be due, from the Farmers and Mechanics Bank of 
Georgetown, McCulloch mentioned the receipt of the Bills of Ex 
change in question, and stated that he had sold them to S. Smith & 
Buchanan, who had not paid for them ; that he then calculated the 
amount of the Bills, at one half per cent below par, and added 



£54 

tlie interest from December 12th, 1818, to August 7th, 181 9, mak- 
ing a total for principal and interest of $27,953 62, for which sum 
he obtained the note of S. Smith & BuGhanan at 60 days, bearing 
date on the 5th of June, 1819 s and that he presented this note to 
the committee, and required that its amount should be passed to 
the credit of the Georgetown Bank. 

William Gill, a Clerk of the Branch Bank at the period in ques- 
tion, and charged with the care of the letters and letter book, was 
then sworn and examined. He proved that by order of Mr. White, 
the Cashier, soon after that gentleman came into office, he made 
diligent search in the bank for those letters from Clement Smith, 
but could not find them, and reported this result to Mr. White. — 
The counsel for the Traversers then produced the original letters, 
which were read in evidence, and found to agree substantially, 
though not literally, with the copies already before the court. Hav- 
ing been delivered back to the Traversers they cannot be inserted. 

Mr. Gill, the witness, was further examined in relation to the 
endorsements on these original letters. He proved that it was his 
business, at the time when they bore date, to endorse and file let- 
ters ; which duty in case of his absense, was performed by some 
other Clerk ; and that the words "C. Smith," written on the backs 
of these two letters, were in the hand writing of James W. M'Cul- 
loh. 

The next witness was Alex. Brown. He proved that some 
time in the latter part of the year 1816, Dennis A. Smith, of Balti- 
more, had obtained from the house of Wm. & James Brown, of Liv- 
erpool, of which the witness was the correspondent and agent, a 
loan to the amount of £40,000 sterling, on a pledge of 1,500 Shares 
of the Stock of the Bank of the United States : That Mr. Smith af- 
terwards assigned these Shares, subject to the hypothecation, to 
the house of S. Smith & Buchanan, who assumed the debt : That 
this loan having been made for two years, the time expired in the 
latter part of the year 1818 ; when the witness by order of the len- 
ders in Liverpool, called on S. Smith & Buchanan for the payment 
or reduction of the debt; and stated to them that if they paid 
£10,000 sterling on account, which would reduce it within the limits 
of the security as it then stood, he could give them further time for 
paying the rest. That James A. Buchanan, with whom his com- 
munications on the subject had taken place, agreed to this proposi- 
tion; and accordingly on the 12th of December, 1818, enclosed to 
him in a letter nine Bills of Exchange on London, to the amount of 



%55 

£10,000 sterling, eight of which, amounting to £6080 sterling, were 
of the precise description in all respects, of those mentioned in the 
letter of November 19th 1818, from Clement Smith to James W. 
M'Culloh ; and the other was a bill of S. Smith & Buchanan them- 
selves, for £3920 sterling, so as to make up the £10,000 : and that 
he received these Bills from Buchanan for the Liverpool house, in 
part payment of the debt due to it, on the pledge of Stock already 
mentioned. 

Mr. Brown then produced and proved the letter of Buchanan 
enclosing these Bills of Exchange, and one set of the Bills them- 
selves. 

The Attorney General was then about to offer evidence, that 
the debt to the house of W. & J. Brown, of Liverpool, in payment 
of which these Bills of Exchange had been delivered to Alexander 
Brown, was the joint debt of S. Smith & Buchanan, James W, 
M'Culloh and George Williams ; who before the payment, had be- 
come the owners of the Stock hypothecated for its security : but 
the fact was admitted on the part of the Traversers. 

Here the evidence for the State closed, under the special count 
in the indictment ; and the Attorney General proceeded under the 
general count to give evidence of the overdrawings of James A. 
Buchanan, in the name of S. Smith & Buchanan, and that they were 
expressly permitted and concealed by James W. M'Culloh.* 

The first testimony adduced for this purpose, was a statement 
of the daily balances appearing on the books of the Branch Bank 
at Baltimore, in the account of S. Smith & Buchanan, from the 
19th of January 1819, to the 20th of May in the same year, both 
days included. This list was made out from the books by Pere- 
grine Janvier, one of the book-keepers of the Baltimore Branch, 
who was sworn as a witness and proved its correctness; in further 
support of which, the books themselves were produced and referred 
to. The statement is as follows : 

* All this testimony was produced In the former case, but afterwards 
withdrawn from that, and applied to this ; under the agreement which has 
already been stated. 



256 



1819 
Jan. 



Over In Bank 1819 



Feb. 



19 


823,332 70 


20 


24,082 70 


21 


24,293 95 


22 


24,293 95 


23 


21,968 66 


24 


21,968 66 


25 


15,359 13 


26 


7376 76 


27 


7763 .57 


28 


8246 34 


29 


,8246 34 


30 


3788 84 


31 


3788 84 


I 


. 6903 42 


2 


7134 42 




7234 42 


4 


8357 76 


5 


8357 76 


6 


8357 76 


7 


8357 76 


8 


8428 76 


9 


8628 76 


10 


8628 76 


11 


8765 57 


12 


8817 57 


13 


8917 57 


14 


8917 $7 


15 


12,3 '4 73 


16 


12,517 76. 


17 


12,979 26 


18 


14,479 26 


19 


11,861 48 


20 


12,279 50 


21 


12/279 50 


22 


12,279 50 


23 


12,379 50 


24 


12,379 50 


25 


13,446 17 


26 


7408 55 


27 


13,969 92 



1819 


Over In Bank 


28 


13,969 92 


Mar. 1 


15,826 25 


2 


21,526 31 


3 


37,972 57 


4 


4368 79 


5 


4468 79 


6 


9199 12 


7 


9199 12 


8 


9399 12 


9 


11,184 78 


10 


11,184 78 


11 


11,184 78 


12 


11,790 41 


13 


11,501 95 


14 


11,501 95 


15 


13,116 61 


16 


15,430 38 


17 


14,951 31 


18 


14,951 31 


19 


16,264 53 


20 


17,015 78 


21 


17,015 78 


22 


17,015 78 


23 


17,083 33 


24 


17,083 33 


25 


17,083 33 


26 


3262 70 


27 


3454 90 


28 


3454 90 


29 


3604 90 


30 


3604 90 


31 


5507 49 


Apl. 1 


14,189 09 


2 


14,189 09 


3 


14,289 09 


4 


14,289 09 


5 


14,289 (9 


6 


1879 25 


7 


920 75 


8 


992 41 



257 



2819 


Over In Bank 


181S 


1 


Over In Bank 


Apl. 9 


8241 34 


April 30 


24,001 12 


10 


11,287 77 


May 


1 


24,185 21 


11 


11,287 77 




2 


24,185 21 


12 


12,237 68 




3 


24,285 21 . 


13 


14,546 45 




4 


30,902 54 


n 


14,546 45 




5 


34,327 54 


15 


14,602 45 




6 


34,327 54 


16 


17,987 86 




7 


35,050 * 


17 


19,487 86 




8 


35,050 


18 


19,487 86 




9 


35,050 


19 


19,587 86 




10 


35,423 33 


20 


16,787 86 




11 


35,423 33 


21 


17,127 86 




12 


35,423 33 


22 


17,599 86 




13 


36,721 38 


23 


20,289 86 




14 


36,774 38 


24 


20,813 96 




15 


36,774 38 


25 


20,813 96 




1G 


36,774 38 


26 


21,880 63 




17 


36,774 38 


27 


21,496 12 




18 


38,165 36 


28 


21,596 12 




19 


39,916 24 


29 


23,841 12 




20 


39,916 24 



The Attorney General here called the attention of the Court 
to the 17th Article of the rules and regulations of the Parent Bank, 
for the Government of the Branches, which prescribes the duties 
of the Cashier and other officers, in relation to overdrawings ; (a) 
and also the 22d Article, which prescribes the oath to be taken by the 
Presidents and Cashiers of the Branches, (b) He then proceeded 
to examine P- Janvier further, on the part of the State. 

He proved, that during the whole period from January 19th to 
May 20, 1819, both days inclusive, he was one of the Book-keepers 
of the Baltimore Branch, and had charge of the account of S. Smith 
& Buchanan : That it was part of his duty to give notice to the 
Cashier of all overdrawings, which he had no doubt that he did, al- 
though he could not remember all the particular instances : That 
he either always informed the Cashier of overdrafts, or understood 
that he was informed of them in some other manner : That some- 
times he mentioned them to the FirstTeller : That for about a month 
before the 20th of May 1819, he regularly furnished Mr. McCulloh-, 

r a J See page 24, fbj See page 140, 

34 



S5S 

the Cashier, before each of the statement clays, which were twice a 
week, with lists of all the overdrafts of any considerable amount ; 
but before that period had only mentioned to him occasionally such 
of them as were of considerable amount, as SI 0,000. That he is 
confident that he never omitted to mention to Mr. M'Culloh any 
overdraft, which amounted to $20,000 : That when he thus men- 
tioned overdrafts, Mr. M'Culloh generally directed him to inform 
the parties of them by note ; and in one instance such a notification 
Was given to S. Smith & Buchanan, when Mr. Buchanan called and 
explained it : That where notice was thus given to the parties, it 
Was the practice for them to call and make deposits to cover the 
overdrafts, or to make explanations to the Cashier : And that Mr. 
M'Culloh sometimes directed him (not in reference particularly to 
S. Smith & Buchanan) to let overdrafts stand, on account of Bills 
of Exchange or promissory notes put in for collection ; and perhaps 
sometimes for other reasons. 

John White and James Beatty, who were Directors of the Bal- 
timore Branch on the 20th of May, 1819, and for a considerable 
time before, were then called and examined on this point. They 
both proved that no information had ever, to their knowledge or 
belief, been given by the Traverser M'Culloh, to the Branch Board, 
of any overdrafts by S. Smith & Buchanan. 

The next witness was Roswell L. Colt, also a Director of the 
Branch on the 20th of May 1819. He proved that on that day, 
M'Culloh, after his removal was made known to him, stated to the 
Branch Board that "he took pleasure in declaring to the Board that 
the Clerks were all intelligent and clever, and that a better set of 
Clerks could not be found ; that some accounts would appear to 
have been overdrawn, which was done by his permission and by his 
orders ; that the Clerks were not to blame, and he assumed the 
whole responsibility." 

James Cox the Cashier of the Bank of Baltimore, which office 
he had filled for many years, was also called and examined for the 
prosecution. He proved, that it was a standing order of the Bank 
of Baltimore to permit no one to overdraw ; but that to a certain 
extent it was often done in the course of business, and sometimes 
could hardly be avoided. That to a proper extent it was often be- 
neficial to the Bank : That the cases where it c was permitted, and 
was useful, were cases of good customers, in whom confidence 
might safely be placed, and who might have good notes or accep- 
tances in the Bank for collection and very near falling due. In 



$59 

such cases, if they wanted some money immediately, which though 
not actually in Bank would certainly be there in a short time, it was 
thought a reasonable indulgence to let them overdraw to a mode- 
rate amount ; which was not only very useful to them, but was also 
advantageous to the Bank, by its tendency to invite and retain 
good customers. To determine when such a case existed was a 
matter of sound discretion and great responsibility in the Cashier, 
but in no case should he think it safe or propeiy to let any customer, 
of whatever character* be overdrawn for any considerable time. 

James L. Hawkins the Cashier of the Franklin Bank of Balti= 
more, was also called and examined on the same subject. He 
proved that it is a stand in g order in the Franklin Bank not to per= 
mit overdrafts ; but they are sometimes permitted by the President 
or Cashier, under particular circumstances, and orders are in that 
case given by him to the book-keeper. This was done in such 
cases as the deposit of good bills for collection on. Boston, New 
York or Philadelphia, which had been accepted and were near ma- 
turity, but could not be carried to the credit of the depositor, till 
advice of their actual payment was received i Or where a note, 
known to be good, had been put in for discount in the interval be- 
tween two discount days ; but the proceeds could #ot be carried 
to the credit of the person who had put it in, till it had been regu- 
larly approved by the board ; and sometimes it would happen that 
a deposit sufficient to cover the checks of a certain day, was made 
late in the day, after the hour of settling the books ; in which case 
the depositor would appear in the account of that day to be over ; 
but the next day he would receive credit for the deposit, and then 
his account would stand correct. It was only in cases of this de- 
scription, Mr. Hawkins said, that he thought himself at liberty to 
permit overdrafts ; which, however might sometimes be made and 
permitted through inadvertance, and might continue a short time 
unobserved. 

John Hoffman was then called and examined on the part of the 
state. He stated, that he was a Director of the Baltimore Branch 
on the 20th of May, 1819, when James W. M'Culloh was notified 
of his dismissal from office ; on which occasion lie spoke highly of 
the clerks, and acquitted them of all blame : and that the Board 
directed a letter to be written on that subject, to the Parent 
Board. 

The Attorney General then referred the court to the statement 
already in evidence, of the securities lodged by M'Culloh, to cover 



260 

some overdrafts ; and among the rest some of S. Smith & Buchan* 
an's, which he !.aa taken on himself, to the amount of $9326 46. (a) 
And here he closed the evidence on the part of the state. 

General Winder for the Traversers then opened the defence. 

As to the Bills of Exchange transmitted by Clement Smith to 
M'Cuiloh, it rested chiefly on this ground: That the indictment 
charged them to be the property of the Bank of the United States ; 
but it appeared from the letters given in evidence, that they con- 
tinued to be the property of the Farmers' and Mechanics' Bank 
of Georgetown, whose Cashier, Clement Smith, had placed them 
in the hands of M'Cuiloh as his agent, to be sold for the use and 
benefit of the Georgetown Bank, with a power merely to apply the 
proceeds when received to the payment of their debt; which he 
contended, produced no change of property, until a sale should 
take place, or the Branch Bank should accept the bills in payment 
on the terms prescribed in Smith's letter, which had been declined. 

He further stated that the bills had been sent to New York by 
M'Cuiloh for sale, but without success ; and that when they were 
returned to him he was sick, and James A. Buchanan offered to 
purchased them : this offer he accepted ; and before he recovered 
the pressure of their affairs put the whole subject out of their re- 
collection. He then proceeded to adduce the evidence in support 
of this defence. 

The first part of it was a letter of November 24th, 1818, from 
Clement Smith to James W. M'Cuiloh ; with the answer of M'Cui- 
loh, bearing date on the 26th of the same month. These letters 
are as follows : 

(Copy to J. W. M'Cuiloh, Cashier.) 

" Georgetown, Nov. 24th t 1818* 
My Dear Sir, 

I shall probably have a payment to make into the Branch Bank 
here in a few days of 18 to $20,000, which I should do by sale of 
Bills of Exchange, but if it would at all be useful to you, I should 
prefer to place the Exchange in your hands, to be sold when and 
where you prefer, and check on you through the Office here. I 
make this proposition to place you in Baltimore funds for the 
SI 5,000 of the Branch paper which you obligingly received from 

(a) See page 142. 



mi 

me some days past, and which I fear was inconvenient to you — If 
convenient let me hear from you per return of mail, 

(Signed) C. SMITH, Cashier. 

J. W. M'Culloh, Esq. Cashier." 

" Office of Discount and Deposit, Baltimore, JVov. 26, 1818. 
Dear Sir, 

|C7* If you send me your sterling, I can get 2 per. disc't ad- 
ding int'st, payable in 50 days, A. Brown & Sons' note ; please 
tell me by return mail if I shall have them to dispose of thus, that 
I may inform Messrs. Browns. The note is first rate. 

First rate sterling was sold this day at three per. cent, discount 
cash. It is quoted from New York 2% to 3 discount. 

I have sent your's (£6080) to New York for sale by an agent 
who went yesterday — I offered them here at 2 but could not get 
it. 

Nothing can prevent a further decline in Bills, whilst our Banks 
pay coin. 

Dollars are quoted to me at Boston at 9 to 10 premium. 

10° If you determine to apply your sterling to pay by selling 
for cash here, I will get the most I can for you if you send them to 

me. In paying the Office at W most probably it will be 

most desirable to it to be paid at W as it cannot draw for 

commercial purposes on other Offices — however if it chooses to 
remit me the proceeds of your Bills, I can have no objection to its 
doing so, but I have no wish on the subject nor do I need it. 
Truly your's, 
(Signed) J. W. M'CULLOH, Cashier. 

Clemeot Smith, Esq. Cashier, 

Richard W. Gill was then called and examined on the part of 
the Traversers. He proved that sometime in the latter part of 
November 1818, he went to New York, to transact some business 
for the Traverser M'Culloh ; and at his request took with him cer- 
tain Bills of Exchange for sale, to the amonnt of £6080 sterling, 
and answering the description of those transmitted by Clement 
Smith to M'Culloh : That his instructions from M'Culloh were to 
sell the Bills, invest their proceeds in specie, and bring it back 
with him to Baltimore : That on his arrival at New York he placed 
these Bills in the hands of a broker for sale, and left them there a- 
bout a week, at the end of which time, finding that he could not 



£62 

sell them, he returned them to M'Culloh by mail, in pursuance of 
his orders : That he returned to Baltimore, about the 1 1th or 12th 
of December, 1818, when he found M'Culloh confined by sickness 
to his chamber (so unwell that he held no conversation on business 
with him) where he continued for some time : That the price of 
the Bills was limited at New York, by M'Culloh to 97 or 98 per. 
cent, or some other small amount below par : and that the Bills 
were unsaleable in New York, not on account of the limitation of 
price, but because they were not endorsed by a New York house 
of credit, or some house known there : That sterling Bills were 
then represented to him as being abundant in the New York mar- 
ket, which might also have operated against the sale of them. 

In relation to the overdra wings, General Winder insisted, that 
as the second count on which alone they could be given in evidence, 
charged the conspiracy to be, to get the money of the Bank " with 
intent to keep and use it two months without paying interest," they 
fell within the principle on which the preceeding case had been 
decided. 

He also observed that some of these overdrawings had occurred 
by accident ; credits not having been given on the days when de- 
posits were made, because they came in after the hour for settling 
the books had arrived : and that in some instances there had been 
errors in the date of checks. When the account was corrected in 
this way, the balance, he said, would sometimes be for them and 
sometimes against them : and he added that a statement of their 
account thus corrected would, as he understood, be prepared and 
laid before the court. This however was never done. 

Thomas Finley was then called, and examined on the part of 
the Traversers. He gave in evidence that he was present at the 
Board on the 20th of May 1819, when M'Culloh's removal was of- 
ficially made known to him ; that M'Culloh then stated the prac- 
tice of the Branch had been to honour checks of men in good credit, 
whether they had money in Bank to meet them or not ; and to give 
them notice when they appeared to be overdrawn ; and that when 
special or express permission had been given to overdraw, it was 
by his order to the Clerks, who were free from all blame in such ca- 
ses : That M'Culloh also suggested to the Board the propriety of 
passing an order, expressly forbidding overdrafts, if they disappro- 
ved of such a discretion in the Cashier ; which was assented to, but 
not reduced to the form of a written order : That no such order 
had been given before : That there had been some previous cases 



£63 

of overdrafts,' when paper had been offered for discount to cover 
them when they were discovered, and the discounts granted, and 
that one such case had occurred at an early period of his director- 
ship. 

Here the evidence for Traversers was closed. JThe Attorney 
General, in reply in evidence, produced the books of the Branch 
Bank, and shewed 'from them that during the whole period from 
19th of January to the 20th of May 181 9, both inclusive, there were 
very few credits to account of S. Smith & Buchanan for Bills or 
Notes lodged for collection; and none after the 23d of April in that 
year. 

Here the evidence was closed on both sides* 

The Attorney General summed up the evidence for the State, 
and Mr. Kell and Genl. Winder for the Traversers. Genl. Har- 
per replied. For the State it was contended, in relation to the Bills 
of Exchange from Georgetown, that throughout the whole transac- 
tion M'Culloh, as well as Clement Smith, acted officially : That 
the Bills were expressly remitted in payment of a balance due to 
the Baltimore Branch, from the Georgetown Bank, for payment of 
which M'Culloh had applied in his official character, by his letter 
of the i 8th of November, 1818: That the effect of the whole cor- 
respondence was, to vest the property of the Bills absolutely in the 
Branch Bank, or more properly speaking in the Bank of the United 
States, through M'Culloh its agent : That the payment was abso- 
lute, although the extent of it, the amount of the reduction of debt, 
was to depend on the sum for which the Bills might sell : That if 
these Bills had remained in the Bank till M'Culloh was dismissed 
from office, and a successor to him appointed, the power to sell 
would unquestionably have devolved on his successor; which prov- 
ed that the transfer of property was absolute : that unquestionably 
the Georgetown Bank could not have reclaimed these bills, but 
merely had a right to credit for their proceeds, or for what they 
might have produced, in case they had been sold improvidently : 
and that if they had fallen into the hands of any third person, the 
Bank of the United States might have maintained trover or deti- 
nue for them, and not the Bank at Georgetown. 

The counsel for the prosecution further urged, that the whole 
manner of conducting this affair, on the part of the Traversers, clear- 
ly indicated a fraudalent design ; the desperate situation of their 
affairs at the period of this transaction, November 1 8th, 181 8, when, 
as was fully proved in the former case, and was in evidence in this, 



264 

they were utterly and hopelessly ruined by the fall of stock, which 
had rendered them insolvent to the amount of a million at least ; 
the pressing demand made upon them by the Browns of Liverpool 
for a large payment on account of their joint stock debt to that 
house : and above all the omission, evidently studied, to file these 
letters in the Bank, or make any entry in the books in relation to 
the transaction: That if there was a sale to S: Smith & Buchan- 
an, it was manifestly fictitious and fraudalent ; because M'Culloh 
personally well knew, at the time of this pretended sale, that S, 
Smith & Buchanan were utterly insolvent, and their note not 
worth the paper on which it was written : That the date of the 
note given for this pretended purchase, June 5th, 1819, nearly six 
months after the purchase is alledged to have been made, clearly 
proves it to have been an after-thought, or subsequent devise, re- 
sorted to after detection : That the application of these Bills to 
the payment of a debt, in which the Traversers were jointly and 
equally interested, was full proof, especially when taken in con- 
nexion with their relative situation in the Bank, and the other cir- 
cumstances of the case, that there existed between them that com- 
munity of object and means, and that mutual understanding in car- 
rying on the operation, which law and reason declared to be the 
best evidence of conspiracy : and finally, that it was impossible to 
look at all the circumstances of the case and the parties, and enter- 
tain a doubt of Buchanan's full knowledge of the true situation and 
ownership of these Bills of Exchange, at the time when he entered 
into the fraudalent combination with the Traverser M'Culloh, tc 
apply them to their mutual use. 

As to the overdrawings they contended, that nothing could be 
more clear than the fraudulent breach of trust, and violation of du- 
ty, by which they were made and permitted, or the fraudulent com- 
bination of which they were the object: that as far as appeared in 
proof, indeed, they were for the benefit of Buchanan alone, or of the 
house with which he was connected ;but this was immaterial be- 
cause it was clear law, that if two fraudulently conspire for the sole 
benefit of one of them, it is conspiracy in both : that here the fraud 
was manifest; because this was not a single act of overdrawing, 
which might have proceeded from inadvertency, but a regular se- 
ries for four months, with but two interruptions, which occurred on 
the 6th and 9th of April ; after which the operation continued with- 
out any intermission, till the 20th of May, the day on which M'Cul- 
loh was dismissed from office ; That these overdrafts went on re- 



263 

gularly and progressively increasing, from the 3rd of May, when 
they amounted to $24,285 21 to the 19th, when they reached the 
height of $39,9 1 6 24 : That it was most worthy of remark, with a 
view to the true nature of this operation, that on the 19th of May, 
1819, the last day ofM'Culloh's controul in the Bank, the over- 
draft was increased $1750 88: That an inspection of the list giv- 
en in evidence shewed, that during the greater part of the period of 
four months to which it extended, if not during the whole of it, and 
especially during the latter part, Buchanan, in the name of S. Smith 
& Buchanan, resorted regularly and almost daily to the Bank, 
for all the money he wanted, for his expenses and every other 
purpose ; and this at a time when he perfectly knew himself, and 
was perfectly known by M'Culloh, who permitted and systema* 
tically concealed these in-roads on the funds of the Bank, to be 
hopelessly ruined, and insolvent to the amount of a million at least: 
and that, consequently, when Buchanan took and M'Culloh con- 
nived at his taking this money, they both knew that he never would 
be able to repay principal or interest, which in fact never had been 
done, and therefore could not have intended to pay either ; a cir- 
cumstance which amounted to full proof of the allegation in the 
second count in the indictment, which related to the intention to 
pay interest, admitting it to be material. 

On the part of the Traversers it was argued, that the whole of 
the letters taken together, which were fully reviewed and com- 
mented on by the counsel, shewed that no property in the Bills was 
transferred to the Bank of the United States ; but merely an autho- 
rity given to M'Culloh as the Agent of the Georgetown Bank, to 
sell them and apply their proceeds to this purpose: That unless 
the Branch Bank agreed to accept them in payment at par, there 
was no payment, and the Georgetown Bank continued liable, and 
might forbid a sale under par: that the Branch Bank has constant- 
ly refused to consider these Bills as a payment : That although the 
Bank of the United States might have maintained trover for the 
Bills, that did not prove an absolute transfer of property in them ; 
because on general principles a special property will support that 
action : That M'Culloh, as Cashier, had no power to receive these 
Bills in payment, nor was any special authority shewn ; and con- 
sequently his receipt of them could effect no change of property: 
That in the letter of Nov. 19th, 1818, Clement Smith asserted, by 
necessary implication, a continuing subsistin power over the Bills; 
and might at anv time have countermanded the authority given to 



£66 

M'Culloh to sell : That if M'Culloh had regarded them as the pro- 
perty of the Bank of the United States, he would have endorsed 
them as such : and that he forbore to do so, because the Bank did 
not think proper to be answerable for their payment. 

In relation to the overdrawings it was contended, that there 
could be no design or fraudulent combination, as respected those 
of May 19th, 1819, which seemed to be most relied on; because 
M'Culloh went out of office without any previous warning ; and that 
as Buchanan was charged on the books with all the sums thus over- 
drawn, this second count and the evidence given under it, were em- 
braced by the principles on which the preceding case had been de- 
cided. 

The argument being closed Judge Hanson stated it to be the 
opinion of the Court, he and Judge Ward concurring, that the Tra- 
versers were not guilty, and that a judgment of accquittal must be 
entered, which was accordingly done. For this opinion no reason 
was assigned. Judge Dorsey observed that he had not yet had 
time to make up his opinion in the case, which required further re- 
flection. He afterwards ordered his concurrence to be entered, 
for reasons which are explained in the following opinion. 

I AM of opinion that the Traversers must be acquitted on both, 
counts. By the first, they are charged with a conspiracy, to de- 
fraud the President Directors and Company of the Bank of the 
United States, by embezzling Bills of Exchange to the amount of 
six thousand and eighty pounds sterling, drawn on certain persons 
in London, and which M'Culloh as Cashier of the Office of Dis- 
count and Deposit, had received in payment of a debt due from the 
the Farmers' and Mechanics' Bank of Georgetown, in the District 
of Columbia, to the President and Directors and Company of the 
Bank of the United States. I have no doubt that the Bank had 
an interest in those sterling Bills, and that a conspiracy to embez- 
zle them, would have been a fraud on the Bank. . But I am not 
satisfied by the evidence in the cause, that Buchanan knew at the 
time that he sold them to Brown and Sons, that M'Culloh had re- 
ceived them as the Cashier of the Office, and in liquidation or dis- 
charge of the debt due from the Farmers' and Mechanics' Bank. 
And unless Buchanan knew that the Bills had been remitted to 
M'Culloh, as the property of the Bank, he could not have conspired 
with M'Culloh to defraud the Bank. It is true that Buchanan was 
the President of the Office, when M'Culloh received the Bills, and 



267 

that he continued to act as such, posterior to the period at which 
he sold the Bills to Brown and Sons : But it is not necessarily to 
be inferred from those circumstances, that Buchanan knew that 
the Bills had been transmitted to M'Culloh in his official character. 
The correspondence of the Cashier of the Farmers' and Mechanics' 
Bank, was with M'Culloh ; and altho' it is highly probable, that 
BuGhanan might have seen the letters, yet his official situation 
does not conclusively warrant the presumption, either that he did 
in fact see them, or that their contents were disclosed to him. 

The second count charges the Traversers with a conspiracy to 
defraud the Bank, and to obtain and embezzle fifty three thousand 
dollars, for the purpose of having and enjoying the use thereof, for 
a long space of time. In support of this count, it has been proved, 
that M'Culloh in violation of his duty as Cashier, and in express 
contravention of the rules established by the Parent Board, for the 
regulation of its Offices, did permit Smith & Buchanan to draw 
from the Office, large sums of money by repeated acts of over- 
checking, to the great injury of the institution. The question, 
which presents itself, is this : Does this testimony support the se- 
cond count ? I am inclined to think it does not : The count charges 
the Traversers with a conspiracy to embezzle 853,000 for the pur- 
pose of having and enjoying the use thereof, &c. The money was 
checked from the Bank by Smith & Buchanan, and must be pre- 
sumed according to the practice in such cases, to be received for 
the sole use of the party checking, 



THIRD INDICTMENT. 

THE THIRD CASE was then called, and the trial proceed- 
ed before the court, upon the plea of not guilty and submission, as 
in the two former. This was also an indictment against James A. 
Buchanan and James W. M'Culloh, and contained two counts.-— 
The first alleged in substance that the Traversers, one being Pre- 
sident and the other Cashier of the Office of Discount and Deposit 
of the Bank of the United States in Baltimore, entered into a frau- 
dulent combination on the 4th day of March 1819, to cheat and 
injure the Bank, by getting its property into their possession out 
of the Branch at Baltimore, to the amount of twenty five thousand 
dollars in money or bank notes, without the consent or knowledge 
of the Directors of the Bank or Baltimore Branch, and by false and 
fraudulent devices and indirect means, with intent to retain and 
use it two months : and that for the more effectual perpetration 
and concealment of this fraud, M'Culloh should from time to time 
cause false and fraudulent entries to be made in the books of the 
Branch Bank, representing that the money or bank notes so to be 
taken out, were loaned on good security : and that in pursuance 
and execution of this fraudulent conspiracy, Buchanan with the 
knowledge privity and consent of M'Culloh, the former still being 
President and the latter Cashier of the Baltimore Branch, did 
draw out twenty five thousand dollars of the property of the Bank, 
in money or bank notes, from the Branch in Baltimore, without the 
consent privity or knowledge of the Directors of either bank, for 
the purpose of applying it to his own use, without giving any se- 
curity for the repayment ; and that for the more effectual perpetra- 
tion and concealment of this fraud, he and M'Culloh procured 
false entries to be made in the books of the Branch Bank, repre- 
senting the money to have been lent on a Bill of Exchange drawn 
by the house of S. Smith & Buchanan on Daniel C. Roliiday of 
Louisiana, for twenty five thousand dollars, and transmitted for 
collection to the Branch Bank at New Orleans, which had thus be- 



260 

tame accountable for this sum : when in fact there was, as they 
well knew, no such Bill of Exchange. 

The second count charged them with a fraudulent conspiracy 
to cheat the Bank, through the Baltimore Branch, of fifty three 
thousand dollars, by embezzling its property in money or bank 
notes to that amount, by false and fraudulent devices and indirect 
means ; but without alledging any thing to have been done in exe- 
cution of the scheme, or any particular means to have been devised 
for its execution. This count charged that the money was to be 
thus obtained and embezzled " for the purpose of having and using 
it two months without paying interest, or giving security for the 
repayment of the principal." 

It was agreed, as in the next preceeding case, that all the tes- 
timony adduce on either side in the first case, should be consider- 
ed as in evidence in this. 

The Attorney General then opened the indictment, and pro- 
ceeded to adduce the . testimony under the second count alone; 
it having been discovered that there was a variance between the 
first count and the evidence, which rendered it inadmissible there. 
This variance consisted in alledging, that the bill on Holliday was 
drawn by S. Smith & Buchanan, without stating in whose favour : 
whereas it appeared by the evidence, that it was represented on the 
books, as a Bill of Exchange drawn by James W. M'Culloh on Da- 
niel C. Holliday, in favour of S. Smith & Buchanan. The testi- 
mony relating to this matter was therefore applied to the second or 
general count. 

For this purpose Thomas B. Rutter, one of the book-keepers of 
the Baltimore Branch, was sworn and examined on the part of the 
prosecution. He proved that he was a book-keeper of that institu- 
tion on the 9th of March, 1819, on which day by order of James W. 
M'Culloh then Cashier, he made the following entry in the day 
book : 

" 0. D. & D. New Orleans To S. Smith & Buchanan 
J. W. M'Culloh's draft at sight on Daniel C. 
Holliday, favour S. S. & B. $25,535." 

He then produced the book, and read the entry from it to the 
court, in those words. 

Mr. White the present Cashier of the Branch, was then called 
and sworn on the part of the State. He proved that after he came 
into office as Cashier, on the /Oth of May, 1819, it was discovered, 
that no such draft as the one described had been forwarded to New- 



Orleans, nor as far as the clerks knew had been in Bank-^-he there- 
fore on the 27th May, directed the entry to be reversed. 

Mr. White then produced three checks of the same date with 
the entry, March 9th, 1819, under the signature of S. Smith & 
Buchanan, which were proved to be in each case in the hand writ- 
ing of the Traverser James A. Buchanan, a partner of that house. 
These checks were all made payable to Daniel C. Holliday or 
bearer. One was for SI 6,250, one for $6,700 and one for 82,585 ; 
making up the precise amount of the entry §25,535. He stated 
that they were found by him in the Branch Bank, when he went 
into office as Cashier ; from which circumstance, and from their 
being crossed in the usual manner, it appeared that they had been 
paid. They are as follows : 

" JVo. Baltimore, March 9th, 1819. 

Office of Discount and Deposit, pay to D. C. Holliday or bearer, 
sixteen thousand two hundred and fifty dollars, no cents. 

S. SMITH & BUCHANAN. 

16,250 dollars cents" 

« JVo. Baltimore, March 9th, 1819. 

Office of Discount and Deposit, pay to D. C. Holliday or bearer, 
six thousand seven hundred dollars, and no cents. 

S. SMITH & BUCHANAN. 

6700 dollars cents." 

* JVo. Baltimore, March 9th, 1819. 

Office of Discount and Deposit, pay to D. C. Holliday or bearer, 
twenty five hundred eighty five dollars, and no cents. 

S. SMITH & BUCHANAN. 

£585 dollars cents." 

Dennis A. Smith was called to prove the time of D. C. Holi- 
day's death. He said he had not been advised of his death by any 
person in Lousiana—- from his recollection he was confident it took 
place in the spring of 1819. He retired and soon after appeared 
before the court and said that he had seen, since he gave in his evi- 
dence, a letter dated in March 1819, from Jos'h Saul to James W. 
M'Culloh announcing the death of Mr. Holliday ; which appeared 
to have been received in Baltimore on the 27th of that month. 



£71 

Mr. White was then called again, and proved that early in 
June 1819, James W. M'Culloh called at the Branch Bank and de- 
livered to the witness his own note dated 3d June, 1819, for this 
sum of g£5,535, and promised to secure it by a mortgage on a large 
sugar estate in Louisiana, which he never did ; and that the note, 
and the whole sumihus drawn from the Branch Bank, still remain- 
ed unpaid. The whole sum principal and interest, was conse- 
quently lost, by the insolvency of the parties. 

Here the evidence for the state, in relation to this transaction, 
was closed. 

Notice had been given to the Traversers and their Counsel by 
the Attorney General, at an early stage of the trials, that under 
the second count in this indictment, he would give in evidence a 
speculation in Bills of Exchange to a very large amount, which ap- 
peared to have been carried on by them, with the funds and at the 
risk of the Bank ; and on which a balance .remaining due when 
their failure took place, hacjbeen entirely lost He now proceed- 
ed to adduce this proof. 

For this purpose Mr. White, the Cashier of the Baltimore 
Branch, was again called and examined. 

He proved that after he took possession of the office, in May 
1819, he observed in the books of the Branch an account, entitled 
" Foreign Bills of Exchange Account" on which there was a ba- 
lance due to the Bank of $5405 60 : That upon enquiry of James 
W. M?Culloh the Traverser, on the subject of this account and ba- 
lance, he directed the balance to be divided into two parts, and 
one of them to the amount of $1164 59 to be charged to his sepa- 
rate account, and the residue §4241 01, to the joint account of 
himself and S. Smith & Buchanan ; both with interest from Decem- 
ber 31st, 1817; and that those sums still remain due and unpaid, 
both principal and interest. 

The books of the Bank in evidence in the former case, were then 
referred to ; where the account appeared at length, and the balance 
as he had stated it. To shew more particularly the nature of the 
transaction, and to give some idea of its extent, the two following 
items of the account were read, 

O. D. & D. Baltimore, September 17th 1817. 
Exchange Account To J. W. M'CulIoh 
For this sum lent upon the Funded 
Debt of the U. S. belonging to himself 



and S. Smith & Buchanan and sent for 
sale to Baring, Brothers, & Co. Lon- 
don — Sterling Bills being drawn for 
like amount by S. Smith & Buchanan 
on Baring, Brothers, & Co. and deliver- 
ed to J. W. M'Culloh Cashier, for sale, 
who is to apply their proceeds to liqui» 
date this loan with interest from the 
16th inst. until so paid—viz : 
$50,000 bo't of W. Y. Purviance, a 10 per. 

cent. pre. 5,000 55,000 

84,931 65 do 8,493 IS 93,424 81 

40,306 43 bo'tof Win. Bruff, a 10£ 

per. cent pre. 4,131 40 44,437 83 
105,000 " John Donnell, a 10£ 

per. cent pre. 10,762 50 115,762 50 
85,945 49 " Allen, Tolbert, & Co. 

a 10J per. cent pre. 8,809^41 94,754 90 
40,625 " W. Y. Purviance, a 

10 per. cent pre. 4,062 50 44,687 SO 
2,500 " L. Buchanan, a 10J 

per. cent pre. 256 25 2,756 25 

15,129 42 " Wm. Bruff, a 10 per. 

cent pre. 1,512 94 16,642 36 

17,936 10 « Wm. Bruff, a 10 per. 

cent pre. 1,793 61 19,729 71 

i 82 66 82 66 

4,400 " Lloyd Buchanan, a j 

10 per. cent pre, 440 4,840 



$446,774 09 $45,344 43 $492,118 52 

O. D. & D. Baltimore, September 25th, 1817. 
Bills of Exchange To J. W. M'Culloh 
For loan unon Funded Debt belonging 
to himself and S. Smith & Buchanan, which 
loan with interest, is to be liquidated by 
the sale of Sterling Bills. 
No. 43 6 per. cent of 1813 2000 

44 " " 2000 

45 « " 2000 

46 " ', 2000 

47 « « 2000 



27-3 

No. 48 6 per. cent of 1813 1363 63 

51 " 1812 5000 

6 « 1814 10,526 31 

182 suppl. 6 do. 1814 102 28 

4 funded 6do.rec.note stock 5,000 

31,992 22 

at 8^ per. cent advance exclusive of di-1 

^idends, payable on the 1st of Octo- I 2,719 33 

bernext, J 34,711 55 

The Attorney General then stated, that it did not appear from 
the books of the Branch Bank, nor in any other. manner as far as 
he had been able to learn, that it had at any time employed any 
part of its funds, or in any way authorized their employment, in 
any such speculation in Foreign Bills of Exchange as this account 
imported : nor was any attempt made on the part of the Traver- 
sers, to prove that such an authority had ever been given, either 
by the Branch or Parent Boards ; or that the operation had ever 
been in any manner communicated to the Parent Board, or any in- 
formation of it given to the Branch Board, otherwise than by plac- 
ing the account in question in the books. It was in evidence in 
the first case, and consequently in this, that the whole business of 
Bills of Exchange, in the Baltimore Branch, was claimed and ex- 
clusively exercised by the then President and Cashier, as executive 
business ; so as to preclude any enquiry into it, on the part of the 
Branch Board. 

Here the evidence for the prosecution was closed. 

On the part of the Traversers none was offered, in relation to 
the second branch of the charge ; the speculation in foreign Bills of 
Exchange. With respect to the pretended draft on Daniel C. 
Holiiday, and the money drawn under colour of it from the Branch 
Bank, it was not alledged, or even intimated, that any such draft 
had ever existed ; or that the Traversers or either of them ever had 
a right or authority to draw on Holiiday, for the sum in question* 
The defence was confined to an attempt to shew, that S. Smith 
and Buchanan had a claim against him to the amount of five thou- 
sand dollars. 

For this purpose Dennis A. Smith was called, on the part of the 

Traversers. He proved that some time in 1818, he purchased a 

sugar plantation in Louisiana, from a Mr. Saul of New Orleans; 

for which a prompt payment of $ 10,000 was to be made, and the 

38 



£74 

i r est of the purchase money paid in annual instalments without in- 
terest: That he paid the g 10,000 by drawing a bill on S. Smith 
and Buchanan, and that the possession of the plantation was to 
have been given, on the payment of said bill : That he was con- 
vinced that this property was capable of being rendered advanta- 
geous, in the hands of a person who could give it the proper atten- 
tion ; and recollecting that S. Smith & Buchanan would probably 
suffer loss, in consequence of the last purchase of bank stock from 
him, which some time after the purchase he understood was made 
for his the said Smith's benefit, he wished to make them some re- 
turn, and offered the purchase of the sugar estate to them through 
James W. M'Culloh, on condition of their paying the said bill of 
$10,000: That Mr. Buchanan on the part of the house, finally a- 
greed to r the proposition ; on which the bill for $10,000 was paid, 
and the transfer made. This tools; place some time in the latter 
part of February or early in March 1819. 

Mr. Smith further stated, that while the communications on 
this subject, between him and James A. Buchanan, were going on, 
he suggested to Buchanan, as a motive for entering into the pur- 
chase, that Mr. Daniel C. Holliday, a gentleman formerly residing 
and well known in Baltimore, who had removed some years before 
to Louisiana, and been engaged there in cotton planting, was at 
that time in Baltimore, and soon about to return to New Orleans ; 
and that probably he would be willing to join them in the purchase 
of the sugar plantation, and to take on himself its superintendance 
and management, for which he was well qualified : and that he 
understood and believed that Holliday did in fact join them in the 
purchase, and agree to refund to them one moiety of the $10,000 
mentioned above. 

He further stated that he had placed on said plantation sundry 
negroes, which cost about ten thousand dollars ; which said negroes 
he offered to transfer and did assign, together with his light to 
the said plantation, for the sole object of indemnifying said S. 
Smith & Buchanan and the other gentlemen concerned with them, 
for any loss which the purchase of the stock might occasion — The 
value of said negroes he did not require of them, nor did they ever 
pay it to him.* 

* This testimony of Mr. Smith, after it was prepared for the press, was 
sent to him by a special messenger, for his revision and correction ; and wa^> 
corrected by him, as it is here presented. 



General Samuel Smith, the senior partner of the house of S, 
Smith & Buchanan, was next called on the part of the Traver- 
sers. He swore, that in the month of June 1818, his partner, J. A* 
Buchanan told him that Dennis A. Smith had made a very valua- 
ble purchase of a Sugar Estate in Louisiana, on which he had pla- 
ced Negroes (in addition to those on the estate) of the value to the 
best of his recollection of 10 or $ 12,000 ; that he considered the 
purchase of great value, and was desirous of transferring it at cost, 
(and without any consideration for the negroes placed by him) to 
the parties who had purchased the Bank Stock from him, as a re- 
muneration for the loss they were likely to sustain on the last pur- 
chase made by them of him. The next day D. A. Smith called at 
the counting house, when George Williams was present, and made 
his proposition to the same effect. After he left the room G. Wil- 
liams and S. Smith told J. A. Buchanan that they would have no- 
thing to do with the purchase, the witness observing that they 
had better attend to their mercantile affairs with which they were 
acquainted, and not embark in a business they did not understand* 
entirely dependant on agents. J* A. Buchanan pressed the pur- 
chase as one likely to afford great advantages. 

Some time after J. A. Buchanan informed S. Smith, that Daniel 
C. Holliday had offered to take one moiety of the estate ; that all 
the money which would be required would be the amount advan- 
ced by D. A. S. when he made the purchase (as he believed $10,000,^ 
one moiety of which Daniel C. Holliday would account for ; and 
that Mr. Holliday had no doubt of being able to pay the instal- 
ments as they became due from the products of the estate. J. A. 
Buchanan pressed the purchase on the ground that it would give 
something handsome to meet the loss we were likely to sustain 
from our negotiations with D. A. Smith. Thus pressed and thus 
assured he (S. S.) gave a reluctant assent, and the contracts were, 
(as he was informed) completed. Some time in the Autumn of 
the same year, S. Smith became on reflection, dissatisfied with the 
purchase, and pressed J. A. Buchanan to relinquish it to Mr. Saul, 
or to sell to some other person, and he promised to use his best ex- 
ertions to comply with the wishes of S. S. On the return of S. S. 
from Congress in the spring of 1819, he became more uneasy in 
consequence perhaps of the death of D. C. Holliday, and again 
asked J. A. B. if Mr. Saul would not take back the property, or if 
no other person could be induced to relieve S. S. & B. from the 
purchase, A few days after J, A. Buchanan informed him tat 



276 

James W. M'Culloh would take the whole purchase to his own ac- 
count, and it was conveyed to him as soon as the title could be pre- 
pared. 

The witness took occasion to enter into some explanations con- 
cerning the manner the business of his house had been conducted : 
That he had brought up J. A. B.from the age of 13 years, that he had 
established him in the Dry Goods business soon after he became of 
age, and some years after had taken him as a partner in his general 
commerce: That from that period such was his confidence in 
him, that he seldom looked into the books of accounts: That he 
does not remember to have ever looked into the Bank Book until 
after the failure of the House : That the finances of the House were 
under the sole management of J. A. Buchanan: That the witness 
knew little of them, owing in part to his long and frequent absence 
in Congress, and at watering places for the health of his family, and 
principally to the unbounded confidence he placed in the capacity 
intelligence and integrity of J. A. Buchanan : That he had approv- 
ed of the first and second purchases of stock from I). A. Smith: 
That he was in Congress when the last purchase was made, and 
that he was not consulted and knew nothing of it, until it was com- 
pleted ; after which he was informed that another purchase had 
been made principally with the view of extricating U. A. Smith 
from his difficulties, but without stating particulars. Some time 
after he pressed J. A. B. by letter to sell the Benevolence Stock 
(for by that name it was denominated) but he was sanguine, and did 
not sell ; That when the purchase of the Louisiana Estate was made, 
Bank Stock was at 140 per cent, at which rate, if sold, (he believed 
then and now) would have covered the cost (without loss) of the 
whole of that Stock held by the parties. Of course that they were 
free at the time to make any purchase they might have deemed ad- 
viseable.* 

Here the evidence was closed on the part of the Traversers. 

The Attorney and his associates, conceiving this case in both 
its branches to be too plain for elucidation, proposed to the counsel 
on the other side to submit it to the court, without argument ; to 
which they assented. 



* The testimony of General S. Smith, after being" prepared for the press, 
was sent to him for his revision. He thougiit it best to write it out entirely 
himself ; and it is here published from a copy of his own manuscript, which 
was compared by him and approved, before it was put to press. 



377 

Judge Hanson, after a short conference on the bench, pronoun- 
ced it to be the opinion of the Court, he and Judge Ward concur- 
ring, that the Traversers were not guilty, and that a judgment of 
acquittal must be entered, which was accordingly done. This took 
place on the 1 3th of April, 1 823, the same day on which the deci- 
sion of the second case had been pronounced. The Reporter had 
left the Court before the decision was made ; but he has under- 
stood that no reasons for it were assigned. Judge Dorsey dissent- 
ed, for reasons which are stated in the following opinion. 



It was conceded in this case, by the counsel for the state, that 
the testimony produced on the part of the prosecution, did not sup- 
port the first count in the indictment, inasmuch as there was a ma- 
terial variance between the matters therein charged and the proof; 
but T am clearly of opinion, that a combination to defraud the Bank 
has been established under the second count. It has been unques- 
tionably proved that M'Culloh on the 9th March, 1819, caused an 
entry to be made on the books of the Bank, importing that a dis- 
count had been granted to S. Smith & Buchanan for twenty -five 
thousand five hundred and eighty-five dollars, on a draft of M'Cul- 
loh's in their favour, drawn at sight, on Daniel C, Holliday, of 
New-Orleans, and that the bill had been remitted to the Office of 
Discount and Deposit at New-Orleans for collection. It was fur- 
ther proved that no such bill was ever drawn ; that the amount of 
this pretended discount was drawn from the office by James A. 
Buchanan ; and that the whole sum has been lost to the Bank by 
the insolvency of the Traversers. It was argued on the part of 
the defence, that Holliday was indebted to the Traversers for an 
interest which he had purchased from them in a sugar plantation 
situated in Louisiana, and that M'Culloh really intended to have 
drawn the bill, but the unexpected intelligence of Holliday ? s death 
frustrated his design. The proof in the case is, that Holliday 's 
death was not known in Baltimore until the 27th of March, 1819. 
Thus seventeen days intervened, between the date of the false en- 
try and the news of Holliday's death. The defence therefore 
which has been relied on, has no foundation in fact. If the-inten- 
tions of the Traversers were fair, why was not the bill drawn and 
deposited in Bank, at the time when the entry was made ? Want 
of time cannot be urged as an excuse, as the draft might have been 



&ys 

written in three or four minutes at most And surely the interval 
of time between the 9th and the 27th of March gave them a full op- 
portunity of writing, endorsing and depositing the bill. Why did 
not the Traversers, when they had received the news of Holliday's 
death, refund the money to the Bank ? — they could not but know 
that they had taken it without authority, and in contravention of the 
practice and usage of all banking institutions, which require dis- 
counted paper to be deposited among the evidences of debt due to 
the Bank. It cannot escape observation, that this money was with- 
drawn from the Bank, after the Traversers had fabricated the stock 
list and pay list which were adverted to and commented on in a 
former opinion. The case presents this simple aspect. The Tra- 
versers in violation of a sacred trust and under false representa- 
tions calculated to deceive those who were interested in the due 
execution of the trust, have taken from the funds of the Office a 
large sum of money, which they converted to their own use, and 
have failed to return to the Bank a cent of their spoil. If such a 
case does not amount to a combination to defraud, I am at a loss 
to conceive in what the offence of a conspiracy to cheat consists. 
As this proof does in my opinion support the second count, it be- 
comes unnecessary to examine and pass an opinion on the other 
proof which has been introduced, for the purpose of supporting a 
distinct and different fraud. 



Thus ended all the cases, after having occupied the court coa= 
stantly from March 21st to the 13th of April 1823, both days inclu* 

sivei 



Page 1 to 6 First Indictment. 
Second do. 

Third do. 

Opening by the Attorney General. 

Rules and Regulations of Parent Bank. 

Resolutions of do. 

Mr. White's Statement of the Stock Notes of §, 
Smith & Buchanan. 

Mr. White's Statement of those of J. W. M'Culloh. 

Mr. White's Statement of those of Geo. Williams. 

Recapitulation of the Stock Notes. 

List of Stock Notes delivered up by J. W. C. 

Proof that the notes were discounted by the par- 
ties themselves. 

Separate debt of S. Smith & Buchanan. 
Do. of J. W. M'Culloh. 
Do. of Geo. Williams. 

Proof that no Stock was pledged. 

Proof that these parties claimed the exclusive con« 
troul of Stock Discounts, as executive business. 

Smith's letter to M'Culloh of February 5th, 1818. 

M'Culloh's answer, February 7th, 1818. 

M'Culloh's letters of Oct. 26th and Nov. 9th and 
14th 1818. 

Fictitious Stock List of Nov. 1318. 

False entry of Nov. 14th 1818. 

True Stock List of Nov. 13th 1818. 

Fictitious Stock List of March 8th 1819. 

Real Stock List of March 8th 1819. 

Real amount of Stock debt. 

Fictitious Pay List of March 8th 1819. 

Statement handed in at Philadelphia, papers. 

Prices of Stock, 



! 1 


to 6 


6 


11 


11 


15 


21 




23 




24 




39 


33 


33 


37 


37 


38 


38 




38 




42 


46 


42 




43 




44 




44 




46 


50 


56 




57 




58 


59 


60 


V 


64 




68 




73 




77 




84 




84 


85 


91 




97 





£80 

Page 113 Gen. Winder's opening for Traversers* 

117 Evidence for the Traversers. 

1 29 Evidence in reply. 

133 Debt of Mechanics' Bank, at different epochs^ 

134 Buchanan's letter to Jones, April 25th, 1817. 

134 James W. M'Culloh's to J. Smith, June 23rd 1817. 

135 Buchanan to Smith, Oct. 31st 1817. 
137 Purchases of Stock from D. A. Smith. 
141 to 142 Deficiency of cash. 

143 M'Culloh to Smith, Feb. 1819. 

148 The Attorney General's argument for the state. 

1 60 Gen. Winder's argument for the Traversers. 

171 Gen. Harper's argument in reply. 

233 Judge Dorsey's opinion on the first case. 

246 Substance of Judge Hanson's opinion. 

248 Second case. The Georgetown bills and over? 
drafts. 

• 249 250 Letters of J. W. M'Culloh and C. Smith* 

256 List of over drafts. 

260 C. Smith's letter of Nov. 24th 1818. 

261 J. W, M'Culloh's answer, Nov. 26th 1818, 



No. I. 



©istutou of p^atfor5f ©otwt» ©out* t, 

With the reasons assigned for it, by Judges Charles W. 
Hanson and William, H. Ward, in the case of the 
State of Maryland against James A. Buchanan, 
James W. M'Culloh and George Williams. 

This is an indictment for a conspiracy to defraud the Bank of 
the Uniied States; the indictment is laid against James A. Bu- 
chanan, as President of the Office of Discount and Deposit of tie 
B k of the United States, at Baltimore, James W. M'Culloh, 
as Cashier thereof, and George Williams, as Director o< the 
Bank at Philadelphia. The gist of the charge is; that they con- 
spire ? to use, and did use, the sum of fifteen hundred thousand 
dollars, the property of the Bank at Baltimore, for the space of 
two months, without paying any interest for the same, and with- 
out securing the re-payment thereof; and, the said Cashier, for 
the purpose of concealing the same from the Directors, did, 
from time to time, make fraudulant and false entries and state- 
in ts. that the said money was loaned on good and sufficient 
secMrity in capital stock of the bank, pledged and deposited 
therefor. To the indictment; the defendants have demurred, 
1st, On the ground that a state court has no jurisdiction, but that 
the nutters alledged in the indictment are cognizable (if at all,) 
in the Courts of the United States; and secondly, that the facts 
1 



charged do not amount to an offence indictable. This is sub- 
stantially the case as argued before the court. Upon the ques- 
tion of jurisdiction it is not necessary to decide, because the 
Court think, that the facts do not amount to an indictable offence} 
and for their opinion the following reasons are assigned. 

That the doctrine of conspiracy, as urged in support of these 
indictments, is exceedingly complicated, and involved in much 
doubt even in England, there can be no hesitation in admitting; 
and that it is new to the people of Maryland, cannot be denied; 
the principles of their criminal laws have always been regarded 
by them as palpable and unshifting, as the fixed and visible 
boundaries of their lands. But it is not upon the belief only, 
(though that would be amply sufficient.) that this doctrine has 
not be recognized and adopted here, that the opinion of the 
court is exclusively founded — it is,that the decisions of the British 
Courts are not sufficiently consistent and uniform in the reasons 
assigned for them, to enable this court to deduce from them 
such clearly established principles, as, in criminal matters, are 
deemed essential to authorise their application to new cases; 
that even in England, where the rules of penal law are not un- 
frequently tyrannically capricious, the doctrine of cheats, effected 
at common law by public false tokens according to statute 33 
Hen. 8th. by private false tokens or by statute 30, Geo. 2d. 
by false pretences, or even by a conspiracy, has never been so 
strained, as to convert a mere private fraud, or a breach of trust 
into an indictable crime. 

It is here proper to notice the luminous discussion upon the 
extent to which the common and statuary criminal law of Eng- 
land is obligatory upon this tribunal. It is so difficult to explore 
almost any principle of common law to its source, that we ap- 
prehend a decision of the King's Bench of yesterday is as much 
a part of it, as the most ancient adjudication; but, we conceive, 
that the doctrine now set up cannot be recognized here, unless 
adopted by the Courts subsequent to our emigration. The com- 
mon law is a work of gradual reformation; and, of consequence, 
has been alternately improved and impaired; it is the common 
sense of a nation concentrated into rules, which, from time to 
time, have been found suited to their local and other circum- 



stances; and hence it is difficult to believe, that the people of 
Maryland, in their bill of rights, meant to declare themselves 
subject to the operation of rules, no matter at what period Brit- 
ish Courts should adjudicate them into a formal existence, with- 
out respecting their own local and other circumstances. The 
bill of rights declares, "that the inhabitants of Maryland are 
entitled to the common law of England, and the trial by jury, 
according to the course of that law, and to the benefit of such of 
the English statutes as existed at the time of their first emigra- 
tion, and which by experience have been fouiid applicable to 
their local and other circumstances and of such others, as have 
been since made in England or Great Britain, and have been 
introduced, used and practised by the courts of law or equity." 
It has been contended, that the true construction of this clause 
is, that the inhabitants of Maryland are to be governed by the 
common law, as it was brought here by our ancestors, and by 
such statutes only as existed at that time, which were suited to 
our condition; and that with respect to statutes since made, to 
be in force here, they must have been introduced, used and prac- 
tised by the courts of law and equity. This position the Court 
considers the true one. in all criminal matters; and, whether in 
civil cases it be altogether true, or in part only, or how far it 
may be modified, is not material to the present question; but, 
with a view of ascertaining with precision, how far the altera- 
tions or amendments which have been gradually introduced into 
the system, particularly in commercial law, of which Lord Mans- 
field and other judges have made almost a distinct science, by 
declaring, not what were or had been the rules of the common 
law, but what they ought to be, it is important to enquire, what 
authority the decisions of the British courts, and the reasons for 
them are entitled to at different periods of our settlement, be- 
fore and since the revolution; and whether the courts of Mary- 
land are bound to regard them, not only as conclusive evidence 
of what the common law is, but the reasons also, as the best that 
could be adduced. We think American courts go quite far 
enough, when they yield to British authority where the point in 
question is expressly decided, without paying such implicit de- 



ferenee to the "sayings" of British judges, as to suffer them to be 
Wrought into authority by analogy. 

The Bill of Rights, we conceive, meant to say. that although 
the people of Maryland were politically separated from Great 
Britain, the rights of property and personal safety, should be re- 
gulated by the^ame code of laws they had been accustomed to. 
But by insulating the first part of the clause, it might be con- 
strued, ex vi termini to mean, that all the common law, be it 
then or hereafter what it might, should be in force in this state; 
and that the restriction was pointed only at the statutes, by de- 
signating such as existed at the time of our first emigration, Sec. 
and such others as had been introduced, used and practised un- 
der; thus making a distinction between statutes before and since 
our colonization, while none is made as to the common law. 
Practically, however, our courts have alike regarded the common 
law and the statutes; such parts of both only as were applicable 
to our local and other circumstances, have regulated their delibe- 
rations, and the fact even of statutes having been introduced, 
used and practised under, cannot be deemed as conclusive evi- 
dence of their applicability. Hence, the courts of Maryland, 
as well as those of England, have always resorted to what has 
been, with precision, termed Judicial Legislation; and the lat- 
ter have, from time to time, declared by adjudication, not only 
what was the common law of England, but what parts of it are 
in force in this country. This has been repeatedly done. The 
case of Griffith and Clements, recently adjudged in the court of 
Appeals, is a signal precedent, in which the common law rules, 
regulating the rationabilis pars of the widow, were disregarded, as 
now practised in England, and those of a date long anterior re- 
ferred to. Very different, indeed, is the practice of courts here, 
from that in Englai d, the actions of ejectment and replevin are 
common law remedies, and yet they essentially differ from the 
same actions in England; many ot these changes have been ef- 
fected by Judicial Legislation, independently of the acts of the co- 
lonial legislature. For why should the people of Maryland 
adopt the common law of England without reservation, whether 
applicable or not, but only such statutes as existed at the time 
of their first emigration, and which had been found, by experi- 



ence, applicable to their local and other circumstances, together 
with such only as had been intro<luced,used and practised under? 
If they intended to adopt only such parts of the common law as 
was applicable to their situation, as most certainly they did, it 
might be asked, why did they not use words of exclusion? The 
answer to us is obvious; they thought the common law was al- 
ready introduced, as far as applicable, and that it was understood 
by their Provincial court, to which they looked up and reposed 
in confidence, and that their legislatures, at any time, might 
alter, repudiate or adopt any part of it. For, numerous already 
were the laws enacted by the colonial assemblies, both civil and 
criminal, essentially altering those of the mother country; at 
the earliest period they legislated independently, and manifest- 
ed a determination to regulate all internal concerns by their own 
laws. The same spirit prompted them, at last r to revolt at taxa- 
tion, because unrepresented in Parliament; and the very attt-mpt 
was one of the leading grievances assigned for the abjuration of 
their allegiance. Long before the revolution, so many branches 
of the English law had been altered and modified, that the laws 
of Maryland, civil, but more especially penal, presented a code 
Which, though emanating from English precedent, might be dis- 
tinctly recognized as a pandect; and it is not reasonable to sup- 
pose, that after the declaration of independence, the people, by 
declaring themselves entitled to the common law of England, 
thereby intended to render themselves punishable for crimes 
they were unconsious of committing, and to which a greater 
punishment was allotted than to any offence known to them be- 
fore, whenever it .should please a foreign court to adjudicate 
theories into laws, by excerpting authority from some recondite 
obiter dicta, at least in this country, long since obsolete and 
exploded, or too recently adapted to the vices of a foreign peo- 
ple. 

It cannot be that the people meant to say, that if it should be 
discovered that the common law had, at any subsequent period 
been judicially legislated into a system different from that 
known to them antecedent to their emigration, and from that 
which they brought with them, that still so great was their at- 
tachment to laws they were ignorant of, that they intended, by 



-their Bill of Rights, to bind themselves indissolubly to those of 
a monarchy they had just renounced. But, whether the whole 
of the common law was ever in force in Maryland or not, the 
decision of British courts as to what it is, could never be ex- 
clusively binding upon the courts of Maryland; because, their 
decisions could not be reversed but upon appeal to the king in 
council; no appeal could de made to the King's Bench, as from 
the inferior courts in England, and in criminal cases, no appeal 
on the Crown side was ever allowed or prosecuted to any tri- 
bunal whatever; so that there being no legal channel through 
which the decisions of Westminster Hall could be made obliga- 
tory upon the courts here, no part of the common law, or any 
changes or modifications made subsequent to our emigration, 
could be judicially recognized. 

The decisions of the court of King's Bench and other courts 
of England made since the Revolution, must be considered 
ceteris paribus on an equal footing with those made before the 
Revolution, but after our emigration* They all either consti- 
tute and make the common law— or are only evidence of what 
it is— if the former, they are not binding, (admitting the view 
of the court to be correct) unless in conformity to the law as it 
was antecedent to emigration — if they, on the other hand, are 
only evidence, they are examinable as such, and it follows there- 
fore, that the reasons upon which they are founded must be par- 
ticularly investigated — and when a British authority is adduced 
to a court in Maryland if the judges are not satisfied, that it af- 
fords a sound decision, it becomes their duty to examine the 
ground alledged to sustain it — they must look into the reason- 
ing; if they find the authorities referred to, misquoted, principles 
palpably misapplied, or that it rests upon authorities notoriously 
inaccurate and containing flragrant contradictions, such an ad- 
judication cannot be respected by them as evidence of the com- 
mon law. Again — if a judge agrees in opinion with the author- 
ity, as to the point decided, yet if, upon examination, he finds 
the reasoning of the court manifesly and indisputably erroneous; 
so defective as to omit reasons that are conclusive, and to adopt 
unmeaning, weak, or doubtful ones, surely he is not bound by 
such reasoning; if through it, a case at Bar should be attempted 



to be made analagous to the one cited, surely he may respect 
the authority as law, not the less because better reasons can be 
assigned for it. For example, suppose an endorser should pay 
a note to the holder, although he might have been absolved for 
the want of timely notice, and should afterwards bring suit to 
recover the amount back, and a court should very properly, de- 
cide against the claim, but assign as a reason for their decision, 
that money paid by mistake in fact, was not recoverable; the 
court to whom the authority was produced, would concur as to 
the question settled, but would not consider itself equally bound 
to respect the reason assigned—the court would adopt the deci- 
sion, but say, that the judge had not given the right reason; that 
money paid from mistake in fact was recoverable, but that mo- 
ney paid by mistake in law was not, where there was a moral 
obligation to pay; and, that was the reason why the endorser, 
after paying the note, though not legally bound to do so, could 
not recover it back; and if the merits of a case at bar rested 
upon the question whether money paid by mistake, in fact, 
could be recovered, and the case alluded to should be cited, and 
its reasoning urged as applicable to the matter subjudice, we 
apprehend, that it would be rejected without hesitation. These 
remarks are made with the intention, not so much of opposing 
any British decision, upon the question, as of meeting, in limine, 
a proposition strongly urged, that we are bound conclusively to 
consider the grounds upon which they are given in all cases the 
true ones, and of weight equally impressive with the decisions 
themselves. Guided by these considerations, every court in 
Maryland before it entertains any criminal doctrine, should be 
well satisfied that it is either a branch of the common law as it 
existed at the time of our first emigration,orof some statute,which, 
in the words of the Bill of Rights, had been by experience found 
applicable to our local and ather circumstances. 

The impression is almost uniform among the profession, that 
the rule of admitting remedial principles and statues was the re- 
verse of that applied to penal ones; the presumption is in favour 
of the former being in force, but against the latter until it appears. 
For, nothing short of absolute despotism can operate with more 
direct oppression, than the power of judicial legislation in crim- 



inal matters; let it once be established as the prerogative of 
courts, and it is the judge not the law that you must beware of 
offending. In civil cases the power of amplifying justice bv ad- 
aptation of remedies is salutary and necessary; juridical science 
has been thereby moulded and perfective; man has no intuitive 
knowledge of civil right; his property is the created being of civil 
polity, he takes it on condition, and holds it by artificial rules, lia- 
ble to the construction and modifications of the ministers of that 
polity; but his life and liberty are inherent properties, they may 
be employed in any manner not expressly forbidden; and although 
ofcrimiual acts, man is always inwardly cognizant, yet, as 
human nature is too prone to transgression, to admit of all its 
immoralities and vices being the subject of legal punishment, he 
has a right to be expressly and literally forwarned what the law 
has forbidden; but, where is the security if courts and not legis- 
lators, exert the prerogative of compassing the ends of the go- 
vernment, by stretching, enlarging, and constructively expand- 
ing any doctrine of the penal code; evervrule of which should 
be broad, palpable, and intelligible to the ordinary comprehen- 
sion of the community? If otherwise, acts must be continually 
proclaimed offences long after they are committed, and punish- 
ments are prescribed, unknown before, as the consequence of 
their commission. Accordingly enquire of the people at large 
throughout the country and they never before heard of this 
offenc< ; interrogate the oldest practisers of the law, search the 
records of your courts, consult the page of Blackstone, and you 
will find them all ignorant of the offence of conspiracy in the sense 
of these indictments; you will find their understanding of it con- 
fined to its old, broad and definable limits; that the crime of con- 
spiracy, allowing its origin to be either at common law or by sta- 
tute — consisted 1st. in persons combining to accuse another of 
some act, for which he might be punishable by some legally con- 
stituted tribunal; 2d. of a confederacy to do some act injurious to 
the public at large, as a combination of journeymen to raise their 
wages — 3d, a confederacy to obstruct the cause of justice by an 
abuse of its courts: 4th, by a conspiracy among two or more men 
to do some act, which, if individually committed, would itself be 
indictable. There are some cases in the British books which 



carry the doctrine farther, and some particularly, which seem to 
authorize the principle, that acts in themselves innocent, if indi- 
vidually committed, are criminal if attempted by a conspiracy; 
but, upon close examination, we think, there is no such case; 
wherever this doctrine has seemed to exist, it is in reality where 
the act meditated was in its nature highly dishonest and frau- 
dulent, through means of which the possession of money or goods 
was designed to be gained, and such as if effected by any means, 
would shew a general intent to defraud the public, and not of 
cases of breach of trust or private frauds, where from the origin- 
al personal confidence, an improper use of the money already in 
possession, could only demonstrate a design to injure the particu- 
lar individual to whom it belonged. To this length the doctrine 
has never been pressed, even in the courts of Westminster Hall, 
and we do not believe it would have been there extended as it 
has, were there not certain cases decided since our emigration, 
which have introduced and tolerated its extravagancies. 

Even in England, where a people of an anxious and jealous 
temperament are easily exasperated by misrule into faction; fret- 
ted by sedition into rankling hatred of their rulers, or goaded by 
penury into guilt; where the vices of a restless and multitudinous 
population are always fermenting into corruption; where new 
crimes, or new modes of Committing olc ones are daily perpe- 
trated; where the subsistence of many is so precarious, that 
every species of dexterity, is on the alert to supply the real wants 
of nature, or the artificial cravings of depraved appetites, and the 
invention of thousands is daily employed to elude the law, that 
they may depredate with impunity, and where, of course, there ex- 
ists the necessary evil of pressing into service every word of the 
penal code as exigencies demand; yet public opinion discards 
even British precedent where the spirit ©f the law is fitted by tor- 
ture to the dimensions of its letter. Hence the bulk British pe- 
nal statutes to give power to courts and lengthen the arm of the 
common law. No offender in England would escape punishment 
for the want of law, if judges had power to make it of any 
other materials than those which were well proved, and taken 
from mines long since open and explored. And accordingly, tho' 
British law books report us cases where the power of the law has 



10 

overtaken offenders and punished their crimes. British history 
records occasions, where the indignation of the whole communi- 
ty was roused against crimes where the law was too impotent even 
to attempt the legal punishment of their perpetrators; and a me- 
morable case of conspiracy, which was not adduced in the argu- 
ment, but occured in the Reign of George II, 1731, serves to shew 
that no idea at that time existed, that a breach of trust tho' effected 
by conspiracy could be punished by any other tribunal than Par- 
liament. 

"The next object of importance (says Smollet, in his history of 
England) that attracted the notice of the house, was the state of 
the Charitable corporation. — This company was first erected in 
the year one thousand seven hundred and seven. Their profess- 
ed intention was to lend money at legal interest to the poor upon 
small pledges, and to persons of better rank upon an indubitable 
security of goods impawned. Their capital was at first limited to 
thirty thousand pounds; but by license from the crown, they in- 
creased it to six hundred thousand pounds, though their charter 
was never confirmed by act of parliament. In the month of Oc- 
tober, George Robinson, Esq. member for Marlow, the cashier, and 
John Thompson, warehouse-keeper of the Corporation disappear- 
in one day. The proprietors, alarmed at this incident, held seve- 
ral general courts, and appointed a committee to inspect the state 
of their affairs. They reported that for a capital of above five 
hundred thousand pounds, no equivalent was found; inasmuch as 
their effects did not amount to the value of thirty thousand, the 
remainder having been embezzled by means which they could 
not discover. — The proprietors in a petition to the House of Com- 
mons represented, that by the most notorious breach of trust in 
several persons, to whom the care and management of their affairs 
Were committed, the Corporation were defrauded of the greatest 
part of their capital: and that many of the petitioners were reduced 
to the utmost degree of misery and distress; they, therefore, pray- 
ed, that, as they were unable to detect the combinations of those 
Who had ruined them, or to bring the delinquents to justice, ivith- 
oat the aid of the power and authority of parliament, the house 
would vouchsafe to enquire into the state of the corporation and 
the conduct of their managers, and give such relief to the peti- 
tioners as to the house should seem meet. — The petition was gra- 



il 

ciously received, a secret committee appointed to proceed in the 

enquiry. Thky soon discovered a most iniquitous scene of 

FRAUD WHICH HAD BEEN ACTED BY ROBINSON AND THOMPSON, IN 
CONCERT With some of THE DIRECTORS, FUR embezzling 
THE CAPITAL AN D CHEATING THE PROPRIETORS. Many perSOI19 

of rank and quality were concerned in this infamous conspiracy: 
some of the first characters in the nation did not escape suspicion 
and censure. Sir Robert Sutton and Sir Archibald Giant, were 
expelled the house of Commons, as having had a considerable 
share in these fraudulent practices. A bill was brought in, to res- 
train them and other delinquents from leaving the kingdom, or 
alienating their effects." The above historical fact is adverted 
to, to shew how the doctrine of conspiracy in England, as appli- 
cable to frauds and breaches of trust, was regarded in the year 
173 i, long after the date of many of the legal authorities which 
have been here cited. The conspiracy was considered of a most 
extensive and serious nature, and so treated; but no information* 
indictment or prosecution of any kind was ever moved in the 
Court of king's bench; and, indeed, it is difficult to conceive how 
such a conspiracy could be reduced to any class of criminal ofV 
fences; it was not attempted, even in England; and, it is im- 
possible to apply it to the rules of cheats, or what is essential to 
make private frauds such: the offence has no attribute in common 
with them; — cheats are constituted by the means made use of to 
obtain the possession of money and goods, and cannot be deduced 
from the use or abuse of that possession. The Treasurer and 
warehouse-keeper had possession of the property. The members 
of parliament who were expelled, and other persons of distinc- 
tion had not — and yet, although it might have been contended 
that the treasurer was only guilty of a breach of trust, why were 
not the others indicted for conspiracy? The case seems to be 
almost pareilel to that before us. — Considered individually, they 
are both breaches of trust; for, although a demurrer formally ad- 
mits the facts charged, and the present indictment alleges that 
they conspired to obtain the possession as well as embezzle the 
funds of the Bank, the legal consequence is not admitted; the de- 
murrer is made for the purpose of raising the questions in the 



12 

case; but, that the obtaining of possession and embezzlement 
was such as to conv rt their individual breach of trust into a 
criminal act, because of an agreement so to use the funds of the 
bank, is denied. 

We have no doubt; that the doctrine of conspiracy, at common 
law, is, that it consists only in a combination of persons to do 
some unlawful act, which, if committed actually>by an individual, 
would be indictable, unless some matter of public concernment is 
to be effected by it. We say at common law, because, under the 
latitude of construction given by courts to the statute of Ed- 
ward, declaring who are conspirators, (which, by the way, is re- 
ported by Kilty, Chancellor, not to be in force, and therefore not 
to be used to eke out the common law-doctrine of conspiracy) 
there are certainly other classes of the offence. — Unless some 
such standard, as above stated, be the true one, the doctrine, by 
reason of its uncertainty, would be illimitable; for "there are» 
perhaps, few things left so doubtful in the criminal law as the 
point at which a combination of several persons in a common ob- 
ject, becomes illegal. Chitty 566, vol. 3." Reject this plain and 
intelligible rule, and the extravagancies of the doctrine, you may 
in vain endeavor to exclude. Authorities have been produced 
to shew, that a conspiracy is a complete offence, though nothing 
be done in execution thereof; a case in Sir Blackstone's reports 
392, 1 vol. has been cited, to shew, that a conspiracy need not 
be proved, but may be inferred from circumstances; and there 
are cases which say, that if two individuals agree not to buy 
their coffee of a particular grocer, it is an indictable conspiracy. 
In the cases of King vs. Lare, 6 T. Rep. 565, Rix and W illiams, 
cited 2 Burr 1128, King vs. Lewis, it was settled and is not 
now denied, that a fraud, by a lie, no matter however plau- 
sible or ingenious or well calculated to deceive, unless some- 
thing further is resorted to than the person's own assertion, as 
false token, forged, letter, or, as is contended, a conspiracy, is 
not indictable; because, it is said, ordinary care and precaution 
cannot guard against the latter, and it is the party's own fault 
to trust any thing, resting only for its truth upon the bare word 
of another. But what becomes of this reasoning when applied 
to unexecuted conspiracies? Its danger and its feebleness be- 



13 

come flagrant, whenever it attempts to unite the doctrine of pri- 
vate frauds and conspiracy together. Can ordinary care and 
precaution guard against an injury meditated by one man, any 
more than against any injury meditated by two, if nothing be 
done in execution of it, or one only is to be the actor? And yet, 
according to the doctrine as contended for, it would not stop at 
the absurdity, that, if two men agree together, that one of them 
shall, by means of false tokens, obtain possession of the money 
or goods of another, but do nothing in furtherance of the design: 
— nay, if they even repent and abandon the project, they are 
guilty of an indictable crime, and the severest punishment known 
to the law, is inflicted upon them — whilst a third, by a train of 
the most subtle and well-digested falsehoods, may actually de- 
fraud (he owner of his goods and money, to any amount, with 
legal impunity; provided he has used no false token, public 
or private, and has resorted to no false pretence under stat. 30, 
Geo. 2d, and has been wary and crafty enough to have kept his 
knavery a secret. For, if he has, according to the doctrine thus 
contended for, communicated it to another, either before or after 
its commission, a conspiracy between them may be inferred, and 
need not be proved. Admit such rules of criminal law. and 
courts and juries may overflow your prisons and penitentiaries 
and erect a pillory at every corner of the street. Two merchants 
agree upon a speculation in flour — one sets out before the other 
to make purchases, and refuses to give the prices asked of him — 
this has a tendency to lessen the price; — the other follows him 
and actually makes purchases at a lower rate than that demanded 
t>f his partner. There is no proof of their having agreed upon 
this device; but it may be inferred, and they are indictable for a 
conspiracy. 

Three young men are employed in a store, being entrusted 
with the money of the house, two agree to make use of a part 
of it, but do not carry their design into effect, the third appro- 
priates the whole to his own use; the two who took no part of it 
are to be indicted and punished, while the guilty owe escapes. 
Two men are in the habit, the one of drawing and the other of 
endorsing notes, upon which they borrow money from a third, 
they become insolvent, but still continuu to obtain thus, the 



4:4 

funds of the other, and although they may have used no art, no 
Gunning, or duplicity; yet, if they knew their insolvency, a con- 
spiracy may be inferred, and would most clearly be within the 
doctrine now set up. Let the rules of ascertaining what are pri- 
vate cheats and conspiracies be once confounded, and the lati- 
tude of prosecution is interminable. But, attempt to apply them 
to breaches of trust, or where the possession was originally law- 
ful, and their fallacy is egregious. But what is a breach of trust? 
What, when there is no trespass or felonious intent in taking 
goods, no subsequent conversion of them can amount to a felony, 
1. Hawe, C. 33, cited 2, East, C. P. When the possession is hon- 
estly obtained upon a contract or trust, in the first instance, the 
subsequent dishonest conversion (except in cases where the 
privity of contract is determined,) is no other than a breach of 
trust, for which the party injured has a civil remedy, 2 East 817. 
What becomes of all the distinctions between frauds not indict- 
able at common law, and cheats, either by statute or at common 
law, or conspiracies, to commit either legal or illegal acts? What 
need of false dice, public or private false token, or of conspira- 
cies has a person, already possessed of money, to enable him to 
convert it to his own use. Is ordinary care and precaution any 
safe guard, whether he has such devices in his possession or not? 
Or are they less so because he suffers others to partake of his 
conversions. By having confederated, he may the better con- 
ceal his acts, but the concealment of an offence is no constituent 
of it, unless in particular cases, as in larceny where it may be 
evidence of intention. 

It has been contended, that the act charged is a conspiracy at 
common law, and that it is also an offence under the statutes, 
they being declaratory of the common law. The earliest statu- 
tory recognition of conspirators is to be found in the 17 Ed. 1st, 
and consists only in directing, that they should be made the sub- 
ject of inquest,* and the statute of 33d. Ed. 1st. gives this final de- 
finition of them. "Conspirators, be they that do confeder and bind 
themselves, by oath, covenant, or other alliance, that every of 
them shall aid and bear the other falsely to indict, or cause to 
indict, or falsely to move and maintain pleas; and also such as 
cause children, within age, to appeal men of felony, whereby 



15 

they are imprisoned and sore grieved, and such as retain men in 
the country with liveries or fees, for to maintain their malicious 
enterprises; and this extendeth as well to the takers as to the 
givers;»and steward and bailiffs of great lords, who by their 
sei^uory, office or power undertake to bear and maintain pleas 
and quarrels, that concern other parties than such as touch the 
estate of their lords," This statute is reported not to be in 
force here, but it has been contended, with masterly dexterity, 
that the origin of this doctrine may be traced to the third branch 
of the statute, and that few common law doctrines can be so dis- 
tinctly explored to their source, that the whole of the common 
law upon the subject is not contained on the statute of Edward; 
that it is only declaratory of, and in affirmance of the common 
law; and, embracing only a part of Hawkins, definition C. 72, 34 
is evidence of the common law only as far as it goes; but ad- 
mitting that it does contain the whole doctrine, it sufficiently in- 
cludes the case at bar; that the main object of the statute, is to 
prevent the combination of persons to do unlawful acts, not only 
by false indictments, but the use of any unfair means whatever, 
"that it is proper, that the statute should be extended to cases 
as they arise, coming within its equity and principles, accord- 
ing as new modifications of society are productive of new crimes, 
that no breach of law growing out of a statute establishing some 
general principles has a clearer origin; and, that the case at bar, 
being a combination to cheat men of their money, is a malicious 
enterprize, and agreement to maintain each other in these en- 
terprizes, true or false." 

We think, however, that where the question is, whether of 
not an act is indictable, that it would be exceedingly dangerous 
and unprecedented to make it such by bringing it within, not 
the letter, but the spirit of the statute, which is at the same time 
urged only to be declaratory of part of the common law, and 
not as making a new law — for, if the offence existed at common 
law, it was punishable as well before as after the statute, and if 
the statute is declaratory, it can be regarded in no other light than 
as evidence of the common law, and as such it cannot be per- 
mitted to enlarge it. It is a penal statute, and it would be con- 
trary to every established maxim of statute reading, to construe 



16 

it otherwise than strictly by confining it to its letter — to do other- 
wise would be to create another oilence by implication out of 
those expressly declared. Is then a conspiracy to defraud an 
individual, without affecting the public an offence within the sta- 
tute of 33 Edward First? The court think not, we cannot con- 
ceive that the first branch of the statute, which declares conspira- 
tors to be those who confeder, and bind themselves by oath, 
falsely to indict others, or falsely to move and maintain pleas and 
cause children within age to appeal men of felony, whereby they 
are imprisoned and sore grieved" has any thing to do with the 
cashier and two other officers of a Bank, converting the funds of 
the institution to tlieir own use — nor can we comprehend, that the 
second and last branch of the statutes, which defines those to be 
conspirators who retain men in the country with livories or fees 
"for to maintain their malicious enterprizes, extending as well to 
the takers as the givers, and stewards and bailiffs of great lords, 
who by their seignory, office, or power, undertake to bear, or 
maintain quarrels, pleas, or debates that concern other parties 
than such as touch the estate of their lords or themselves" can 
have the remotest bearing upon the question of a cheat — prac- 
tised by one private individual upon another. And that the 
"Bank of the United States, as respects this argument, is but an 
individual, like any private Banking House, no Lawyer will de- 
ny. Banks are considered in law, trading companies, and re- 
garded as individuals as much as private mercantile firms. 
Every branch of the statute relates to some public interest, 
falsely to indict an abuse of public justice, to maintain pleas, 
is maintenance — also, an abuse of the administration of justice — « 
causing children to appeal men of felony, infants being irrespon- 
sible — an abuse of courts — a clear public interest — such as retain 
men for malicious enterprize — a defiance of the government — 
a public interest — and so of the last branch, as to bailiffs of lords, 
who maintain quarrels, &.c. 

The book of assizes however, enumerates another species of 
conspiracy alledged to be at common law, to be enquired of, and 
that is, the offence of a combination among merchants to regulate 
the price of wool; this was declared to be an offence by statute sta- 
ple, passed 27 Ed. 1. the same year of the book of assizes; and as 



17 

such, independently of the common law, was directed to be en- 
quired of as recorded in the book of assizes. 

We will now investigate one single case, anterior to our emi- 
gration, which seems to contain doctrine not to be included in the 
class of conspiracies to injure individuals, by acts in themselves 
indictable, or where public trade, public health, or some great 
public interest is affected, or where the course of law is pervert- 
ed by the abuse of the administration of justice. The rest of the 
cases are either before courts, not now to be respected as legal 
tribunals, as Star Chamber, &c or contain no certain principles 
material to this argument. 

Let us turn to the Poulterers' case 5th. Coke's reports in 8th 
of James 1st. This was a civil case against the Defendants, Poul- 
terers, for a conspiracy falsely and maliciously to charge the 
Plaintiff with robbery, and cause him to be arraigned, indicted, 
and hanged, and in execution thereof, procured warrants for his 
arrest, and he was accordingly apprehended and bound to appear, 
but an ignoramus was returned by the Grand Inquest. It was 
moved, because he was not tried, and actually acquitted, that 
the action did not lie against the conspirators; but it was re- 
solved, that the bill was maintainable; and divers other points, 
it is said, in this case were resolved; 1st. that there were means 
by common law to protect the innocent, before verdict; and al- 
though writ of conspiracy lie not till indictment and legitimo modo 
acquietatus, yet a false conspiracy shall be punished, though no- 
thing be put ia execution; and so, also, a conspiracy to indict or 
acquit, is punishable, though nothing be put in execution or exe- 
cuted. But what says Holt, in the case of King vs. Daniels, 6 
mod. in the reign of Anne, quoted by counsel for the prosecu- 
tion? "The case of Staring" (which was a conspiracy to impov- 
erish the farmers of the King's revenue) says he, "was directly of 
a public nature, and levelled at the government, and the gist of 
the offence was its influence on the public, and not the conspi- 
racy, for that must be put in execution before it is a conspiracy; 
if two or more agree to indict a man of a crime, of which he was 
not guilty, the very meeting and agreement is an ill and unlaw- 
ful act, but not indictable perhaps, but if a meeting be to kill or 
rob, it may be indictable." Now, either Lord Coke or Lord 



18 

Holt is wrong, for they are directly opposed; or this Court is 
right, in the distinction they have made between conspiracies 
of a private nature, to injure individuals only, and those tending 
through them to affect the public at large. In the latter, the act 
meditated need not be put in execution, or be of an indictable 
character. The Poulterer's case goes further, however and set- 
tles , that a confederacy and false alliance, is a binding together, 
to do some "unlawful act," which the court punishes, though 
unexecuted, in order, through mercy, to prevent mischief. But 
Hawkins, in his definition of conspiracy, says, there can be no 
doubt, that all confederacies, wrongfully to prejudice another, 
are indictable. Thus differing with Coke, in substituting the 
word wrongful for unlawful; and hence it has been supposed, 
(although there can be no doubt that by the word "unlawful," tak- 
ing the whole context together, Coke meant to attach criminality, 
either to the means used, or the degree in which the object was 
to be affected by them,) that wrongfully to prejudice, meant mo- 
rally or civilly, but Lord Ellenborough, in the case of King vs» 
Turner, 13 East, expressly rejects this reading, and decides, 
that a conspiracy to commit a nocturnal trespass, (of so outra- 
geous a cast as to induce one of the counsel for the prosecution 
to declare it individually indictable,) not an indictable offence, 
because the act could only be a civil trespass upon a private 
person. The Poulterers' case concludes thus: '*& confederacy 
punishable by law, before it is executed, ought to have four in- 
cidents, first, it ought to have been declared by some manner of 
prosecution, as in the caise of making bonds and promises one to 
the other; it ought to be malicious, as for unjust revenge; it 
ought to be false, against an innocent; and it ought to be out of 
court voluntarily." If this case be authority, as contended by 
the prosecution, what becomes of all the modern doctrine of 
conspiracies of a private nature being complete, though nothing 
be done in execution of them, that their object and the means 
are totally immaterial, and that the conspiracy itself is all that 
is to be looked for? 

It is impossible to reconcile any two authorities, in such a 
view of the doctrines, and it is only by considering such prin- 
ciples as applicable to conspiracies only where the public at 



19 

large is concerned, that we can be preserved from yielding to 
the most egregious contradictions; and accordingly, Chitty, the 
most modern author who has devoted much attention to the 
subject, truly declares, that "what kind of agreement is illegal, 
seems not yet precisely settled, and that the decisions do not apr 
pear quite in unison with the points they profess to settle." 
^Ve apprehend the Poulterers' case to be in favor of the rule 
adopted by the decision of this court. Having examined the 
case which we deem most pertinent, antecedent to the emigra- 
tion of the colony, we will pass on to Hawkins's definition of con- 
spiracy, at common law, and see how it is supported by the au- 
thorities it rests on by reference. He says, "it also seems cer- 
tain, that a man may not only be condemned to the pillory, for 
a false and malicious accusation, but also branded; but since ifc 
doth not appear to have been solemnly resolved that such of- 
fender is indictable upon the statute, it seems to be more safe 
and adviseable to ground an indictment of this kind upon the 
common law, than upon the statute, since there can be no doubt, 
but that aU confederacies, whatsoever, wrongfully to prejudice 
a third person, are highly criminal at common law; as where 
divers persons confederate together, by indirect means, to im- 
poverish a third person, or falsely and maliciously to charge a 
man with being the reputed father of a bastard child, or to 
maintain one another in any manner, whether it be true or 
false " For the first branch, the impoverishing a third person* 
he refers to 1 Levin, 62, 126, 1st Sid. 124, 1 Keble, 350, and 
what are these cases? The first Rex vs. Kimberly and Mary 
North, for conspiring to charge J S. with begetting a bastard 
upon the body of the said Mary, with a view of extorting money; 
upon motion in arrest of judgment, because there was no indict- 
ment found, the court said, that was not essential, and for au- 
thority quoted the Poulterers' case, which we have already ad- 
verted to. See 1 Levinz. 62. The next case Levinz, 126, 
Starling's case, was conspiracy to depauperate the excisemen; 
it was decided by the court expressly to be a conspiracy with- 
out an overt act, because it was of a public nature, having a ten- 
dency to diminish the King's revenue; the excisemen were not 
mentioned by name as individuals; but as excisemen. £o much 



20 

for Hawkins's accuracy as to conspiracy for impoverishing an in- 
dividual. The Poulterers' case is here also quoted as the au- 
thority, with Sid. 174 and Keble 350, and they will be found not 
more. to be relied on in support of Hawkins's principles. It is 
said however, that nothing is to be inferred against his doc- 
trine, because a wrong class of cases is quoted, as that might be 
the error of his commentators. It, however, leaves his defini- 
tion to rest solely upon his own authority, unless others are sup- 
plied. 

Let us now examine the second branch, "falsely to charge a 
man with being the father of a bastard child; (cases of this kind 
are abundant in the books, and have been adduced with a view 
of evincing, that it is indictable to conspire to charge a man with 
anything injurious to his reputation, and which might subject 
him to indictment. The cases of bastardy are, however, quiet- 
ed, by many cases in which it has been adjudged to be, within the 
statute of Edward, indictable, to accuse a man with any thing 
that might subject him to a charge, or to the cognizance of any 
court, temporal or ecclesiastical. They are however put more 
satisfactorily to rest by the statute of 18 Eliz. C. 3, which or- 
dains, that two justices may take order for the punishment of 
the reputed father and mother. With regard to the last branch, 
the maintaining one another in any matter whether it be true or 
false — that would be individually indictable on many grounds, it 
includes an agreement to commit any crime whatever, but it is 
emphatically niaintenance t one of the oldest offences known at 
common law, though not known here, according to Kilty, as far 
as affected by statute. Before we leave Hawkins's definition of 
conspiracy, we shall quote his 3d sect, inasmuch as it has been 
said, that although verbal slander is not indictable, the law is 
absurd enough to make a conspiracy to commit it punishable, 
although not a word has been whispered; and this out of pure 
tenderness to individuals, although it permits the grossest calum- 
nies to be propagated against them, from the mouths of forty at 
the same instant without attempting to arrest them by any crimi- 
nal process whatever. The third sect, says, "neither does it seem 
to be any justification of a confederacy, or appeal which was pre- 
ferred, or intended to be, in pursuance of it, that it was insuffi- 



21 

cient, or that the court wherein the prosecution was carried on, 
had no jurisdiction of the cause, or that the matter of indict- 
ment did import no manner of scandal, so that the party aggrieved 
v. < .in truth, in no danger of losing either his life, liberty or reputa- 
tion; for, notwithstanding the injury intended to the party against 
whom such confederacy is formed, may perhaps be inconsidera- 
ble, yet the association to pervert the law, in order to procure it, 
seems to be a crime of a very high nature, and justly to deserve 
the resentment of the law." From this section, emanates the 
true reason of many decisions, which have been made upon the 
authority of his definition, wherein he substitutes the word 
wrongfully for unlawfully, but which, would otherwise have been 
placed upon their true ground, viz: the abuse of public justice by 
making its courts the medium of fraud. And of this class, is, no 
doubt, that of Rex vs. Rispal 3. Bur 1320, which was a conspiracy to 
charge one John Chilton, with having taken a quantity of hair out of 
a bag, and afterwards receiving a sum of money to desist from all 
prosecution for the same; the court said the gist of the offence is the 
unlawful conspiracy to injure the man by this false charge. How 
was he to be injured but by subjecting him to indictment? and 
thus, in the words of Hawkins, "perverting the law, in order to 
procure it." We do not upon the whole, consider Hawkins's de- 
finition of conspiracy more correct than his definition of cheats 
which, he says, consist in deceitful practices in defrauding, or 
endeavouring to defraud another of his known right, by means 
of some artful device, contrary to the plain rules of common ho- 
nesty." This 2, East 817, considers not sufficiently accurate, or 
distinct, to be taken as a definition. And clearly it is not, for if 
it was, it would include Wheatly's case (which we shall hereaf- 
ter more particularly attend to,) and many others, that were ad- 
judged not indictable for the want of some false token, public or 
private. If such definition were the true one, there would have 
been no occasion for the statute of 33 Henry 8, or the 30 George 
2d.; for if it were indictable to endeavour to defraud, the means 
would be surely immaterial. We will now examine such of the 
cases cited as we deem at all important, without regarding par- 
ticularly their order; they have been introduced, not so much on 
account of the points settled in them, and their analogy to the 



22 

case at bar, as on account of their "dicta;" or in other words 
what it was not essential to say, in support ot the principles laid 
down, as the reason of them. We are not disposed to reject 
those dicta, but we say, that they are examinable, and that, how- 
ever respected they may be, they must be confined to the subject 
matter to which they relate. For example, in a case of conspi- 
racy to make false indictments, or accusations, as in bastardy 
cases, and a variety of others, which we consider as having rela- 
tion to the public at large, we shall not take the dictum of a judge 
as of the same weight, in the case before us, as one pronounced 
in a case of a private cheat. The King vs. Best, 1 Salk 174, 6 
Moder 187, 2 Lord Ray. 1167, was a charge for begetting a bas- 
tard child; all that was determined in them, is, that a conspiracy 
is the gist, and that nothing need be done in execution of it; and 
that it is the same thing whether the conspiracy be to charge an 
innocent person with a temporal or ecclesiastical offence. The 
case in Holts's Reports and 2 Roll Abrgmt, and Kebles's Reports 
203, 254, 399, are all cases of false accusation, as well as the 
case of 2 Mass. 5S6. King vs. Kinnersly, which was a case of 
charging a man with an attempt to commit sodomy; the court 
said no overtact was necessary; conspiracy was the gist; and* 
that an attempt to commit sodomy was itself indictable* 

We will now look at the cases which have been adduced by 
Chitty, and 2 Massachusetts reports. Commonwealth vs. Jud« 
and alios, in support of the position, that "there are many cases 
in which the act itself would not be cognizable by law, if done 
by a single person, which become the subject of indictment, when 
effected by conspiracy, which is punishable, although it be to do 
a lawful act, for unlawful purposes." 

The first case T. Rep. 636, was an indictment against a ma- 
gistrate for giving false certificates, that a high way was in repair, 
in order to screen those whose duty it was to keep it in repair; it 
was expressly decided, that it was illegal to conspire to pervert 
the course of Justice, which was a matter of public concern* 
The 2d case Campbell, 358, was a civil case. Sir James Mans- 
field said, if a body of men go to a Theatre with a settled design 
to damn a piece, there can be no doubt, that such deliberate pre-- 
concerted scheme would amount to a conspiracy. If people en- 



23 

deavour to effect an object by tumult and disorder, they are 
guiity of a riot; and so says this court; for as a riot is an in- 
dictable offence, a conspiracy to effect it is so, and Mackliu's 
case was expressly a case of riot; the indictment was not for 
a conspiracy; besides, the public has an interest in the Thea- 
tre, and of course in the genius and talents of an actor, and 
a conspiracy to destroy him might be considered as an injury to 
the public. The 3d case 4 Bur. 2472, was a combination between 
officers in the East India service, to throw up their commissions* 
It was held unlawful to do so, and that the service did not there- 
by terminate; such an act might certainly be an injury to the pub- 
lic at large, and it was decided, that officers had not a right to 
throw up their commissions, and resign at all times, and under 
any circumstances. It was not a prosecution for a conspiracy, 
it was a civil action against Lord Clive, by one of the officers. 
The 4th case is that of a verbal slander, 1 Lev 62, and that we 
have already noticed; it was a case of bastardy, &c. &c. The 5th 
case 3 Maul and Selwyn, was a combination to raise the price of 
the funds on a particular day by false rumours, viz. that Bona- 
parte was killed, &c. this was expressly put upon the ground of 
its being a fraud, levelled against all the public. Lord Ellenbo- 
rough says, the purpose itself is mischievous, it strikes at the 
price of a vendible commodity, and _gives it a fictitious price by 
means of false rumours: and Hawkins makes it an offence, to raise 
the price of any commodity by false rumours, individually in- 
dictable. 

There are other cases quoted by Chitty, 2d Bur. 993, 3 Bur. 
1321, but these are cases of conspiracies to indict, and extort 
money thereby; Chitty concludes by saying, w To combine in 
raising wages, in resigning commissions, or expressing disappro- 
bation at a Theatre, seem scarcely so detrimental to public tran- 
quility as a malicious and nocturnal trespass, and yet the former 
had been holden to be indictable, and the latter a mere civil in- 
jury, 13 East. 231'*, and further he says, "it might be inferred, 
from the decisions, that to constitute a conspiracy, it is not ne- 
cessary that the act intended should be in itself illegal, or even 
immoral, that it should affect the public at large, or that it should 
be accomplished by false pretences; and though it is agreed, that 
the gist of the offence is the union of persons, it is impassible tto 



24 

conceive a combination as such to be illegal/' Chitty, title con- 
spiracy. " We can rest, therefore only on the individual cases 
decided, which depend in general on particular circumstances, 
and which are not to be extended," 3d Chitty title consp. So 
much for the cases quoted by Chitty, upon this part of the ques- 
tion. 

Let us now refer to the cases cited in 2 Massachusetts Rep. in 
support of the position, that a conspiracy against an individual 
(though the public at large be not concerned) is indictable, 
though it be to do a lawful act. 1st case, 8 mod. 320. This was 
a case of a conspiracy to marry a woman in order to gain her a 
settlement in a parish — is this an offence against an individual, 
or an attempt to burthen a large class of the community with the 
support of the woman as a pauper, and therefore a conspiracy of 
a public nature? 2d case, King vs. Journeymen Taylors of Cam- 
bridge, 8 mod. 11. that was a conspiracy to raise wages and of 
consequence a matter of concernment to the public at large; 3d 
case, King vs. Robinson, Leach Crown Law 38, a conspiracy to 
marry a woman in a false name for the purpose of raising a spe- 
cious title to the estate of the person whose name was assumed; 
there an abuse of courts of justice was the means by which the 
object of the conspiracy was to be accomplished-— all that the 
court decided was, that it was the province of the jury to collect 
from all the circumstances, whether there was not an intention 
to do a private injury to Mr. Holland, and that it was not neces- 
sary to prove any direct or immediate injury, or even to shew 
any specific overt act of conspiracy — there was no other point 
raised in the case. These cases, in themselves, certainly do not 
support the position taken in second Massachusetts Reports. In 
the argument of the case, 1 Hawkins, p. c. ch. 72, Poulterers' 
case, Rex vs. Edward, 8 mod. 321, 11 mod. 55; 3 Burr. 1320, 
1 Lev. 125, 1 Keble 203, 1 Vent 304, 8 mod. 320 ibid. 8. 1 Ven. 
183. 1 Salk 174, were all quoted to establish the doctrine, that 
a bare conspiracy to do a lawful act to an unlawful end is a crime, 
although no act be done in consequence thereof; but we think it 
manifest, that all these cases relate to conspiracy of a public na- 
ture — the case itself was a conspiracy to sell spurious indigo to 
the pubLic at large, and cannot be made to bear with force upon 



25 

a question as to the means used to effect a private cheat. The 
case in first Massachusetts Reports, was a conspiracy to obtain 
goods from a merchant by several persons, under pretences' of 
opening a retail grocery store. This case was not argued, nor 
was there a motion in arrest of judgment, which the reporter 
supposes was abandoned by counsel from attending to the cases 
of Regina vs. M'Carthy, and King vs. Wheatly — both will be no- 
ticed hereafter — Case of Rex vs. Cape & al. 1st. Strange, 144, 
husband, wife, and servants, were indicted for a conspiracy to 
ruin the king's cardmakers by bribing his apprentices to put 
grease in the paste; objection in arrest of judgment that no more 
than one was present at a time when money was given, and the 
court overruled the objection — It was only a question of what 
was evidence of a conspiracy. The case of King vs. Edward, 1» 
Strange 707, indictment for conspiracy to marry a person settled 
in the parish of A. to a person settled in B. in order to bring a 
charge upon the parish of B. on demurrer, judicium pro defen- 
dante, because not an offence indictable, directly in opposition 
to 8 mod. 520. The case of the Journeymen Taylors of Cam- 
bridge was conspiracy to refuse to work under certain wages. 
The court rested upon the authority of the Tub Women's case, 
but that went upon the ground of diminishing the king's re- 
venue. 

We have examined every case we deem important in the parts 
of the case we have yet reached, which have been adduced by 
the prosecution, with the exception of Sir Francis Delavall's case, 
and Eccle's case. The charge against Sir Francis Delavall and 
others was, that they had conspired to remove a girl of eighteen, 
out of the hands of the defendant, Bates, a musician, to whom 
she was bound, to place her in the hands of Sir Francis, for the 
purpose of prostitution. Lord Mansfield places this case upon 
the ground of its being contra bonos mores offences against which 
are individually indictable — he quotes the case of a man, formal- 
ly assigning his wife over to another, where there was a prosecu- 
tion, being notoriously and grossly against pubhc decency and 
good manners. He says, n It is true many cases of the inconti- 
nent kind are appropriated to ecclesiastical courts; but, if you 
except those apppronriated cases, this Court is the custos morum 
4 



26 

of the people; Sir Charles Sedley anil Curl were accordingly 
prosecuted here for offences against good manners." He says, 
also, "besides, there was a conspiracy" — but if that was of itself 
sufficient without regarding the purpose, why rely upon the 
ground of its being against public decency? This case was not 
argued. Eccle's case was a conspiracy to impoverish a Taylor, 
by driving him away from his trade. — The conspiracy was in- 
dictable, not because of the injury aimed at the individual, it 
was because of the injury through him, as a Taylor, to the pub- 
lic; he would have been left to his civil remedy for the damage 
offered him as A. B.; the public could have no redress, but by a 
criminal prosecution for the injuries offered him as a Taylor. It 
was in restraint of trade, the community has an interest in every 
tradesman, and if they are suffered to be driven away, monopo- 
lies of a particular branch of trade, might be the consequence. 
Such an attempt by single persons may be disregarded, but be- 
comes dangerous on the score of public utility if attempted by 
numbers. 

The last and most important branch of this subject depends 
upon the authorities relative to the doctrine of cheats. East, in 
his treaties of the pleas of the crown, says* that " it is not every 
species of fraud or dishonesty in transactions between individu- 
als, which is the subject matter of a criminal charge at common 
law, but it must be such as affects the public; such as is public 
in its nature — calculated to defraud numbers — to deceive the 
people in general." 2 vol. 817. Instead of Hawkins's definition 
©fa cheat, heretofore stated, East declares, that he should ra- 
ther say, "it consisted in the fraudulent obtaining the property 
of another, by any deceitful and illegal practice or token, (short 
of felony,) which affects or may affect the public." — But the of- 
fence is now enlarged by the statutes 33 H. 8. and 30th, Geo. 2d. 
Neither of which statutes, according to the report made by chan- 
cellor Kilty, of the British statutes, is in force here; so that the 
offence remains as at common law. In addition, says East 823, 
to those abovementioned, there are also instances to be found in 
the books of Cheats, in their nature private, which have yet been 
adjudged to be indictable at common law, but, upon examination, 
they will either appear to be founded in conspiracy or forgery; 



27 

or, as in some of the instances before put, to implicate consi- 
derations or public justice, public trade, or pub ic policy;" they 
are subsequent to that of 3. : - Mm. ft, hut prior to that of 30, Geo. 
2." Thus it is said by Hawkins, that the suppression of a will 
is indictable as a cheat, for which he cites Noy. 103, but as there 
were several persons convicted on the information filed against 
them by the Attorney General, it is probable they were charged 
with a conspiracy or combination. The same may be said of Skir- 
rett and others who were indicted for causing an illiteral per- 
son to execute a deed to his prejudice, by reading it over to him 
ih dim rent words from those in which it was written. So of 
Obeli's case, who was convicted upon a charge of having run a 
foot race fraudulently, and with a view to cheat a third person, 
by a previous understanding with the competitor to win. Haw- 
kins instances all the above cases as individually indictable, in- 
dependently of any combination; but East says, it is probable 
they were on that ground, and for Grbell's case refers to 6 mod; 
42; and there the words " per conspirationem" appeared, but in 
12 mod. 459, cited Kino; vs. Orbeville, no such words appear, al- 
though it seems to be the same case, notwithstanding 6 m. 42, 
calis it Queen vs. Orbel!, and 12 mod. calls it King vs Orbeville 
— No reliance can be placed on these cases, except to shew the 
inaccuracy of "Haw kins; nor upon the case of Regina vs. M'Car- 
ty, and Fordenborough, which. East says, was a case of doubt 
and difficulty. Mr. J. Denison, in Blackstone's report of Wheat- 
ly's case, says, " it was quashed for want of false token;"' and in 
Burrows's report, that "it was a case of false token;" see 2, East 
824, so that Wheatly's case is the only one wherein any princi- 
ple can be taken hold of upon the question of private cheats ef- 
fected by a conspiracy; and this is the case mainly relied on by 
the prosecution. We shall examine Lord Mansfield's opinion, 
he being the only judge who delivers a "dictum"oabout conspira- 
cy. Mr. Justice Denison having been made to s*>eak differently, 
in different reporters, as to M'Carty's case. As to Tremaines 
Placita Coronse, it cannot be considered as authority in cases of 
cheat, they were in the time of Charles 2d, and if they had been 
authority, there would be no occasion for the statute of 30, Geo. 
2d — his conspiracy cases have no bearing upon cheats; and, ai- 



28 



though many of his cheat cases may rest upon a combination, 
there are many against a single person, which for the want of a 
false token, under 33, Henry 8th, or of false pretences under the 
statute 30, Geo. 2, would be now over-ruled, viz: Rex vs. Wil- 
cox, Rex vs. Baker, Rex vs. AUibere, Rex vs. Wansbrough, Rex 
vs. Chamberlaine, Rex vs. "Bonny. 

Rex vs. Wheatly, was a motion in arrest of judgment upon an 
indictment against Wheatly, for fraudulently selling sixteen 
gallons of a liquor called Amber, for, and as, eighteen gallons, 
to one Richard Webb; the judgment was arrested. This was 
not an indictment for a conspiracy, but against an individual for 
a cheat; and, it is upon what Lord Mansfield unnecessarily said, 
(and which may have been, therefore, called a dictum, for his 
reasons without it were certainly more applicable, and indisputa- 
bly sufficient to support his opinion,) that the doctrine now urg- 
ed can only be sustained. Lord Mansfield, after stating the case 
and some preliminary matter, says, " that the fact here charged 
should not be considered as an indictable offence, but left to a 
civil remedy by an action, is reasonable and right in the nature 
of the thing; because it is only an inconvenience and injury to a 
private person, arising from that private person's own negligence 
and carelessness, in not measuring the liquor. — The offence that 
is indictable must be such a one as affects the public; as, if a man 
uses false weights aud measures and sells by them to all or many 
of his customers, or uses them in the general course of his deal- 
ing. So if a man defrauds under false tokens — for these are de- 
ceptions that common care and prudence cannot guard against — 
so if there be a conspiracy to cheat, for ordinary care and cau- 
tion is no guard against this. Those cases are much more than 
mere private injuries, they are public offences. But here it is a 
mere private imposition, &c." 

It is to be observed that this was an indictment at common law 
for a public, not a private cheat; an offence against trade — as all 
cheats at common law, as we shall hereafter attempt to demon- 
strate, were considered. The false tokens, spoken of by Lord 
Mansfield, were therefore public false tokens, as false weights and 
measures, not the privy false tokens of II. 8* as a ring, a seal, a 
colonel's gorget, or a forged letter. The offence could not have 



29 

been committed through the instrumentality of the latter;16 gallons 
of amber could only have been sold for 18 by a public false token, 
a false weight or measure, not by a privy false token; the former, 
betoken a general design to defraud all or many of his custom- 
ers, and by which the public in general may be imposed upon 
without any imputation of folly or negligence. So of a conspi- 
racy; it is an offence against the public at large; and when Lord 
Mansfield spoke of a conspiracy, he could not have had any re- 
ference to a private cheat. "What (says Justice Denison) is it to 
the public whether Richard Webb has or has not his 18 gallons 
of amber?" But let there be, (as this court says,) a public false 
token, or a conspiracy which common care and prudence might 
not well guard against, and it becomes a matter of public con- 
cernment. Attempt to substitute a conspiracy for a privy false 
token and what becomes of all the doctrine of unexecuted con- 
spiracies? That no overt act need be done, — that a conspiracy, 
need riot be proved, but may be inferred, and that from two per- 
sons having done the same thing, though at different times, they 
may be presumed to have combined. A, is indicted for a cheat, 
and has used no false token to effect it, but a conspiracy is set up 
as a substitute, and if it should be offered in evidence, that B 
attempted the same fraud, and that it therefore, might be inferred 
that there was a combination between A and B, would any court 
in Maryland suffer such evidence to go to the Jury? might not 
one man be convicted upon the acts of another, to whom he might 
be an entire stranger, and himself perfectly innocent of any de- 
sign whatever? Y\ here is there, in the whole range of authori- 
ties, a case of an individual being indicted for a cheat qua cheat, 
and a conspiracy being given in evidence? What had Lord 
Mansfield to do in the case of Wheatly, with private or privy false 
tokens? It was a case of a public cheat, and to public false to- 
kens he could only pertinently allude. Suppose the statute of 
Henry 8th, had never passed, every word of his opinion would 
have reference to the case before him, and we should never have 
heard of a conspiracy being substituted to create the offence of 
private cheats. East 823, expressly says, the cases of private 
cheats effected by conspiracy or forgery are all subsequent to 33 
Henry 8th. We consider this as bearing with peculiar emphasis 



30 

on the case at bar, as from it is strongly to be implied, that if 
the statute never had been passed, there could have been no pri- 
vate cheats effected by a conspiracy. The people of Maryland 
are presisely in the same predicament, as if it never had been 
enacted — for, neither 33 Henry 8th, nor 30, George 2, is in force 
here, as declared by Chancellor Kilty under the authority of the 
legislature of this state. 

No cheats but those of a public nature are known to our laws. 
The people of England, lived till 33 of Henry 8, before frauds 
effected by private false tokens were indictable; and from that 
period until 30th of George 2d, before frauds effected by false 
pretences were indictable. The courts of England never dared 
judicially legislate far enough to lay hold of such offences, though 
their frequency was grievous, and at last called, importunately 
for parliamentary interference. The courts could not get along 
with this strange doctrine of conspiracy, without suffering the 
desultory, vagrant, and ubiquarian dicta, in relation to it, to be 
foisted into and invade all, and every department of criminal law, 
applicable to private offences; and that for no better reason, than 
that it properly belongs to none. 

The question before the court is, simply, whether or not, the 
acts charged, amount to an indictable conspiracy at common 
law; and whether they would or not constitute a cheat, is not in- 
volved in the enquiry, further than it concerns the position, that 
a conspiracy makes an act a cheat, which, for the want of a false 
token, would not be a cheat; unless it is in reference to the doc- 
trine, that a conspiracy to injure only an individual is not indict- 
able, except when the act meditated would be indictable, if ac- 
tually committed by an individual. The present is not an in- 
dictment for a cheat, the acts charged would not be individually 
indictable as such; but it is said, that being affected by a conspi- 
racy, they thereby became indictable as cheats. The case relied 
upon chiefly, is Wheatly's case above referred to; that was not 
the case of a conspiracy; an individual was indicted for selling 
16 gallons of amber for 18 gallons, and the court said, there must 
be either a false token or a conspiracy, but they did not say, that 
on an indictment for a cheat, a conspiracy could be given in 
evidence to make out the offence, nor can there be such a case 



31 

produced; it would be contrary to every principle of criminal ju- 
risprudence, that one distinct offence known to the laws of the 
land, could be made use of in a prosecution for another; if it could, 
why not, on an indictment for a cheat, give in evidence a con- 
spiracy to steal, as a substitute for a false token? For in case 2 
Barn wall and Anderson, (presently to be noticed,) it is said, in 
an indictment for a conspiracy the means to be used to commit 
an offence which establishes what criminal character an act as- 
sumes whether it be cheat, larceny, or robbery? It is also said, 
in that case that it is quite sufficient to charge the defendant with 
an illegal conspiracy, which is, of itself, an indictable offence; so 
that, take the doctrine of conspiracy altogether, as it has been 
argued to be, and if from the act of A. and B.; no matter whether 
committed in the presence of each other, or at different times, 
it can be inferred that they meant to get possession of the money 
or goods of C. A. and B. may be indicted for a conspiracy, which, 
it has been urged, need not be proved, but may be inferred from 
circumstances; and, if it can be shewn, that they ever intended 
to get C's money or goods, whether by means that would amount 
to cheat, robbery, larceny, simple fraud, or civil trespass, they 
are indictable for a conspiracy, though they only intended to use 
such means; for it also is insisted, that a conspiracy is a com- 
plete offence, though nothing be done in execution of it, provid- 
ed it be an illegal conspiracy. But, whether it be an illegal 
conspiracy, must surely depend upon the means used,- and the 
object aimed at; and yet it is said, that the means are immaterial. 
From which reasoning, it follows, that if A and B be indicted 
for a conspiracy to rob C, evidence may be given of an inten- 
tion to commit acts which would only amount to larceny. Let 
it be supposed, upon an indictment for a cheat, that, for the want 
of a false token, a bare conspiracy to get money of another, with- 
out any thing being done in execution of it, should be offered in 
evidence, could the indictment be thus supported? The answer 
can hardly be in the affirmative. What then becomes of the doc- 
trine of unexecuted conspiracies, when applied to private frauds? 
The defendants say, a conspiracy against an individual, is not an 
indictable crime, where the public is no way concerned, unless 
the act, if actually committed by an individual, be indictable. If 
the defendants had committed a cheat, why were they not indict- 



82 

ed for a cheat? The answer is obvious: there were no false to- 
kens to make it so, and, (independantly of statute S3, Heurj 8; 
making frauds by privy false tokens, criminal, which is not in 
force in this country,) the acts charged to them could not consti- 
tute a cheat, because they were not of a nature to be effected by 
public false tokens, as false weights and measures. Otherwise 
relying, as the counsel for the prosecution profess to do, upon 
Lord Mansfield's opinion in Wheatly's case, why were not the 
traversers indicted for cheats, and the conspiracy offered in evi- 
dence? Aware of the difficulties presented by that course, an 
indictment for a conspiracy is preferred, and with consummate 
subtlety, if not sophistry, they adapt the very authority, (on 
which they did not sufficiently confide to follow the course it in- 
timated) to the purpose of making a cheat out of the conspiracy 
and a conspiracy out of the cheat. If says the argument, in order 
to constitute the crime of conspiracy, the act designed must, it- 
self, be criminal — here is such an offence, because it was to be 
effected by a conspiracy. But where is the conspiracy? The 
answer is, it is a conspiracy, because the act is indictable, by 
reason of the conspiracy to commit it. To our apprehension, 
this is inferring the premises from the conclusion, and the con- 
clusion from the premises. It is a conspiracy, because it is a 
cheat, and it is a cheat because it is a conspiracy. A conspira- 
cy to cheat is criminal, because a cheat is indictable, and a cheat 
is indictable, because a conspiracy is, and, therefore, a cheat ef- 
fected by conspiracy, is indictable. From deductions founded 
upon such reasoning, the court do not think it warrantable to in- 
troduce new offences into the criminal code. 

Conspiracy is a distinct substantive offence, and is as different 
from a cheat as it is from larceny or robbery, and we conceive 
much of the difficulty arises from considering it as a component 
of other indictable acts, and of mingling the constituent parts of 
a crime at common law, with those of private cheats, created by 
statute. If two men should agree, in so ma) iy words, to cheat 
another.of his money, they conspire to do a criminal act, because 
the law would presume, that they did not mean to stop short of 
the means necessary to effect a cheat} and the particular false to- 
ken need not be set out, because, the conspiracy is the gist, and 



S3 

nothing need be done in execution of it. But if A and B agree 
to get possession of the money or goods of C. the law would not, 
instanter, infer, that they intended a cheat, because it might be 
their object to obtain it on loan; and, although they might know 
themselves to be insolvent, yet the law, for the purpose of convert- 
ing the private fraud into an indictable cheat, would not suffer the 
conspiracy to be substituted for a privy false token. So, if two 
conspire to commit a burglary, the offence is complete, and the 
particular means need not be set out, although it might depend 
upon them whether it was a burglary or a larceny. And this is 
all that the Court decided in the year 1818, in the case of the 
king vs. Hill and Henry, reported by Barnwall and Alderson. 
That was a conspiracy to commit an offence which, if individually 
committed, would be indictable; to cheat by false pretences is 
an act made indictable by SO, George 2 — but that statute is not 
in force, in this country. The Court said, that the conspiracy 
was the gist of the offence, and so it was, for they were indicted 
for conspiring together by divers false pretences and subtle 
means, to obtain from him large sums of money, and to cheat and 
defraud him thereof; and all the court said was, that the specific 
pretence need not be set out, because the conspiring was the gist 
of the offence, and the means were matter of evidence. But 
did they say, that if the the statute had never passed, (and it is 
not here in force) that on an indictment for a conspiracy to cheat, 
such false pretences as the statute speaks of, could be given in 
evidence, in lieu of the privy false token of S3, Henry 8th, or 
the public false tokens required at common law; or, that in an 
indictment under the statute SO, George 2d, a conspiracy could 
be given in evidence, according as the prosecution would interpret 
Lord Mansfield to mean in the case of Wheatly ? The crime of 
conspiracy cannot be confounded with the characteristics of pri- 
vate frauds, for the purposes of making them indictable crimes, 
nor can private frauds be blended with conspiracies, for the same 
end, 

Conspiracies are offences against the public at large, and a pe- 
culiar punishment is inflicted upon them far exceeding, in seve- 
rity, any known to our code, with the exceplion of murder in 
the first degree. The law will not thus signally punish injuries 
5 



34 

to individuals affected by conspiracy, unless through them the 
blow is to be felt by the community. It provides for an indivi- 
dual a civil remedy. For, what interest can the community have 
in the safety of a single individual, thus to protect him against 
the combination of others, though nothing be done in execution 
of their designs? Is it not more reasonable to ascribe the pun- 
ishment it inflicts for a combination to impoverish a Taylor by 
indirect means in driving him from his settlement, to the inter- 
est of the public at large, and that anxious care which pervades 
every part of the English law for the protection of all branches 
of trade, than to any respect it pays to the rights of an indivi- 
dual? The community cannot be indemnified by evil actions, and 
therefore in order to reach the offender, the law makes use of 
the injury done the individual as the medium of punishment. 
Blackstone, whose mind was so signally distinguished for that 
rare union of precision and expansion, which at once embraces, 
divides, assorts and defines all subjects presented to it, knew 
nothing of the offence of conspiracy against individuals, as con- 
templated by these indictments — but, by his methodical and dis- 
criminating arrangement, some light may be collected from the 
class in which he ranks cheats, as he divides offences into class- 
es. He does not class cheats as offences against the king's pre- 
rogative; he does not class them as offences against the king and 
government; nor among ''offences against public justice," as, re- 
ceiving stolen goods; barratry maintenance; champerty; com- 
pounding informations; conspiracy; falsely to indict; threaten- 
ing to accuse of a crime punishable infamously, with a view of 
extorting money; perjury; bribery; extortion. &c. — he does not 
class them in his chapter of offences against public peace, nor 
against public health, police or economy, as bigamy, nuisances, 
and gambling. It is not in his chapter of offences against private 
property, as larceny, robbery, malicious mischief, theft, forgery; 
but he classes them conspicuously among offences against public 
trade. After speaking of smuggling, usury, forestalling, regrat- 
ing, engrossing and monopolies, under the head of which comes 
the offence of artificers combining to raise the rate of labour, by 
virtue of statute 2, Ed. VI. he says, cheating is another offence 
more immediately against public trade; thus considering with 



35 

Chitty and East, cheats at common law, as offences against tSie 
public at large, and of course very little of British authority can 
be applicable to them here. The decisions since the statute of 
the 33d, Henry 8, having essentially changed the rules applica- 
ble to cheats. Let the offence of cheat be considered as an of- 
fence exclusively against public trade, and, perhaps on that 
ground, a conspiracy to commit a cheat might be supposed to be 
indictable; but the doctrine cannot be applied to private frauds 
without maintaining principles either too old, not to have been 
before practised under, if considered applicable to this country, 
or too novel now to be received. The court considers the prin- 
ciples upon which these indictments are attempted to be sustain- 
ed, not sufficiently intelligible, and that it is its duty to protect 
the people of Maryland within their jurisdiction, from punish- 
ment for any act, which it is not perfectly satisfied is forbidden 
by the laws. 

One case remains to be noticed. — The King vs. Turner, 13 
East 228, is, we think, conclusive upon the subject of conspira- 
cies, where mere private civil injuries only were to be effected by 
them, and in which the public had no concern. It was decided 
as late as the year 1811 by Lord Ellenborough — and was an in- 
dictment for a conspiracy to commit a civil trespass upon pro- 
perty, by going into a preserve for hares for the purpose of snar- 
ing them — the act was committed in the night by the defendants, 
armed with offensive weapons, for the purpose of opposing resist- 
ance to any endeavours to apprehend or obstruct them; they 
were found guilty, but, upon motion in arrest of judgment, they 
were discharged. Gold endeavoured to sustain the rule upon 
the authority of Hawkins 2 P. C. — Gleed now opposed the rule, 
and endeavoured to sustain the indictment upon the authority of 
2 Hawk. P. C.c 72 s 2, where it is said "that all confederacies 
whatsoever, wrongfully to prejudice a third person, are highly 
criminal at common law, as where several confederate to main- 
tain one another in any matter, whether it be true or false." The 
cases all shew that it is equally an offence to combine to do a 
lawful act by unlawful means, or to an unlawful end, as to do an 
act in itself unlawful; as in the instance of workmen conspiring 
together to raise their wages, as in the case of the King vs. the 



86 

Journeymen Taylors of Cambridge, 8 mod. 11 — or, parish officers 
conspiring to marry a heiptess pauper into another parish to set- 
tle her there, and rid themselves of her maintenance, as the case 
of Rex vs. Edwards and others, 8 mo. 320; and in all cases oi un- 
lawful conspiracy, the mere unlawful agreement to do the act, 
though it be not afterwards executed, constitutes the offence, 
according to Rex. vs. Armstrong and others, 1 ventr. S04, and 
Rex vs. Respal, 3 Burr 1220 and Blac. rep. 368. In this latter 
case, the indictment for conspiracy to charge a man with a false 
fact, and exacting money from him, under pretence of stifling 
the charge, was sustained, though the fact imputed, which was 
merely that of taking hair out of a bag belonging to the defend- 
ant, Respal, did not import, in itself, to be any offence. Lord El- 
lenborough said, "All the cases, in conspiracy, proceed upon the 
ground, that the object of the combination is to be effected by- 
some falsity — insomuch that in Taylor and Towlins's case in 
Godb. 444, it was held necessary in conspiracy, to allege the 
matter to be false et malitiose. By the old law, indeed, the of- 
fence was considered to consist in imposing, by combination, a 
false crime upon a person. But are you prepared to shew, that 
two unqualiiied persons going out together, by agreement, to 
sport, is a public offence? Modern cases have carried the offence 
further than some of the old authorities; such as the king vs. 
Eccles, and others, where the defendants were convicted upon a 
charge of conspiring together, by indirect means, (not stating 
what those means were) to prevent a person from carrying on his 
trade; and in the King vs. Spragge and others, 2 Burr 995, which 
charged the defendants with a conspiracy to indict and prosecute 
"W. G. for a crime, liable, by law, to be capitally punished; and, 
that in pursuance of such conspiracy, they did afterwards indict 
him — one of the objections was, that the charge was only a con- 
spiracy to indict falsely, but it was overruled. Lord Ellenbo- 
rough, C. J. "that was a conspiracy to indict another of a capital 
crime which, no doubt, is an offence," and the case of the King 
vs. Eccles and others, was considered as a conspiracy in restraint 
of trade, and so far a conspiracy to do an unlawful act affecting 
the public. But I should be very sorry, that the cases in conspi- 
racy against individuals, which have gone far enough, should be 



37 

pushed stiil further. I should be very sorry to have it doubted, 
whether persons agreeing' to go and sport upon another's ground, 
in other words, to commit a civil trespass, should be thereby in 
peril of an indictment for an offence which would subject them 
to infamous punishment." 

Here Lord Ellenborough said, he should be sorry, that the cases 
of conspiracy against individuals, which have gone far enough, 
should be pushed still farther — but, say the counsel for the prose- 
cution, he does not say that they had been pushed too far. The 
Court, however, think, it must be implied, that the learned Judge 
meant to say, that although he would not stop short of the length 
to which the doctrine had been actually carried; yet, that it had 
never gone so far as in the case before him, and the one now at 
bar. It is to be observed; that the same principles and the same 
authorities were set up in both cases; the subject was fully laid 
open and presented to him in the same point of view as it has 
been to this court; and, it is manifest, that Lord Ellenborough 
decided upon the principle, that conspiracies to commit mere civil 
injuries, where no matter of public import was to be effected, 
were not the more indictable for being connected with a conspi- 
racy, than if perpetrated singly. This was a nocturnal trespass s 
and attended with such aggravated circumstances, as ought to 
render it an indictable crime, if individually committed; yet the 
law does not so treat such private injuries, and Lord Ellenbo- 
rough did not consider, that their being attended by a conspira- 
cy, could convert mere private civil injuries into indictable 
crimes. It is upon the same ground that this court decides; 
they conceive that the doctrine of conspiracy has been carried 
far enough, and that it ought to be carried no farther. They 
consider the authority of equal weight with any that has been 
produced on the part of the prosecution; and, that it has more 
resemblance and analogy to the case before the court, than any 
other that has been adduced. 

Upon the whole, the court considers the doctrine of conspira- 
cy as urged in support of the indictments, too complex to be 
now adopted here, as the rule of criminal law; that, if the dicta 
of judges, and bare precedents of indictments, which do not ap- 
pear to have been questioned, argued, or settled by decisions. 



38 

are to be regarded as conclusive upon the Court, such authorities 
are as numerous in support of tire most extravagant positions as 
of any part of the doctrine; and that consequently, the Court are 
not at liberty to reject one part and recognize another; that the 
branches of the doctrine cannot be detached from each other — that 
the whole must be taken together, and that, if the rule conceiv- 
ed by this court, before stated, be the true one, a definite and 
rational limit is established; if otherwise, the doctrine is illimit- 
able and undefinable. — -Thus impressed, the court considers it 
their duty to protect the community against the establishment 
of principles contrary to all those by which it has been hereto- 
fore legally regulated; and which would subject every individual 
in society, not to the law, but to the will of the judges, purely 
arbitrary, because governed by rules to be applied in making out 
the nature of an offence, not as intelligible prohibitions, before 
the commission of an act, but as expost facto definitions of crime 
after the act has been perpetrated. The court considers the 
punishment of bare intention to commit crime, contrary to all 
received opinions of criminal law, and never attempted but in 
cases of treason, in which, construction has been made by English 
Judges, at no very remote period, the instrument of absolute 
monarchical power; and that, if a conspiracy need not be proved, 
but may be inferred — that is to say, if acts individually innocent, 
may be made criminal, because it might be deduced from two 
persons doing the same thing, that they had previously agreed 
to do it, however remote from each other, oppression may be le- 
galized to any extent; and in times of great public excitement 
and delusion, with a Jeffries on the bench, and a jury selected 
from the mass of the people, the doctrine might be wrought into 
an engine of the most cruel and bitter persecution. 

C. W. HANSON, 
WM. H. WARD.* 

*This opinion was never filed in Court; but as it was soon afterwards 
published with the names of the associate judges, there can be no doubt 
of its accuracy. 



No. II. 



Opinion of Judge Dorsey, on the ilemavvev 



The question raised by the demurrer, is this, Do the facts 
charged in the indictment constitute an offence against the laws 
of Maryland? That such is their legal effect, I have no doubt: 
Hawkins in his Pleas of the Crown, vol. 1, p. 348, says, "There 
can be no doubt, but that all confederacies wrongfully to preju- 
dice a third person, are highly criminal at common law." The 
opinions of this writer, upon the subject of criminal law, have 
always been considered as entitled to the highest respect and 
consideration, for his researches were great, his discrimination 
accurate, and his legal learning profound; and it will be found 
on investigation, that his position is fully established, by the au- 
thority of adjudged cases. In Timberly and Child Siderfin 6?, 
(adjudged 14th, Charles 2d.) the reporter states, " that the de- 
fendants conspired to charge one with being the father of a bas- 
tard child, with intent to procure money from the party accus- 
ed," and on motion to quash the indictment, it was urged, that 
the offence was merely spiritual; but the Court said, that " the 
indictment was good, for although fornication was a spiritual of- 
fence, this Court has cognizance of every illegal thing by which 
damages may come to the party as here they may; for by this, 
he maybe liable to the maintenance of the child." 



40 

1st Keeble 203, Child against North arid Timberly, (13th, 
Charles 2d,) " Lindley moved to quash an indictment of conspi- 
racy to charge H. with having carnal knowledge of a woman, 
and did so, and that the child she went with was H's, which he 
said, was matter not within the cognizance of the Court; but per 
curiem. This is likely to be a loss and charge to H., and, there- 
fore, the indictment is well laid;" and by Foster, it is no ground 
that because the Court have no " cognizance of the principle, 
they cannot punish the conspiracy." In 1st Keeble 254, the 
same case under the name of King against Timberly, was brought 
before the Court on amotion in arrest of judgment » f Brvett 
moved in arrest of judgment, for that the matter of the indict- 
ment, it being to deprive the plaintiff' of his credit, and to ex- 
tort several sums of money from him, but said not that they eon- 
spired to cheat the plaintiff," (prosecutor must have been intend- 
ed) "before any that had jurisdiction. Windham. The crime 
is the conspiracy, which, whether it be only to defame or dis- 
grace men; or had it been to charge him with heresie, it had 
been punishable at common law, though no prosecution be had 
thereon. And by Twisden, this is a conspiracy for lucre and 
gain, to charge and disgrace one with a bastard, which is well 
actionable. And by Foster, the very act of conspiracy is so odi- 
ous for the ill consequences, that it cannot have a good intent. 
Judgment for the Queen." 

King against Armstrong, Harrison and others, 1 Ventris, 304, 
(28th and 29th, Charles 2d.) defendants were indicted for con- 
spiring to charge " H. with keeping a bastard child, and thereby 
to bring him to disgrace. It was objected in arrest of judg- 
ment, that the bare conspiracy without executing it by some 
overt act, was not the subject of an indictment, it did not ap- 
pear that he was actually charged with keeping a bastard child; 
nay, 'tis alledged, that it was but a pretended child, neither was 
he bv warrant brought before a justice of the peace upon such 
account; but only that they went and affirmed it to the party 
himself, intending to obtain money from him, that it might not 
be further disclosed sid non allicatur; for there is as much an 
overt act, as the nature and design of this conspiracy did ad- 
mit, in regard there was no child, but only a contrivance to do 



41 

tame the person and cheat him of his money, which was a crime 
of a very xwy heinous nature: Judgment was entered up against 
them, and Armstrong who appeared to be the principal offender, 
was fined 50/., and the others SO/." 

King against Best and others, 2 Lord Raymond 1167, (4th 
Anne) defendant was indicted with three others, for that they 
being idle, scandalous, and wicked persons, in order to defraud 
one P. P. of his money and destroy his reputation, did conspire 
fal-ely, to charge him with being the father of a bastard child, 
with whom they pretended one Elizabeth Carter, then to be ensi- 
ent, and that in pursuance thereof, they did falsely, for the sake 
of wicked gain in the hearing of many of the subjects of the 
Queen, accuse the said P. P. with being the father of the said 
child, to the great loss, scandal, and defamation of the said P. P. 
&c. &c. The indictment was excepted to, on the ground, that it 
was defective in not stating, "that the child was likely to become 
chargeable to the Parish; for unless the prosecutor, by the accu- 
sation, was likely to be subjected to some penalty, the indictment 
would not lie — The indictment is nothing, but that the defend- 
ants conspired to tell the prosecutor, that he was the father of the 
child Elizabeth Carter, was ensient with." The Court gave 
judgment for the Queen; "for they said the defendants were 
charged at least, with a conspiracy, to charge the prosecutor 
with fornication, and though this was a spiritual defamation, yet 
the conspiring to do it, was a temporal offence and indictable, and 
the conspiracy was the gist of the offence, and the Chief Justice 
said, that confederacies was one of the articles of the commis- 
sion." 

And in Tremaine's Pleas of the Crown, p. 83, King against 
Turner and others, (26th, Charles 2d.) will be found the prece- 
dent of an indictment, whereby the defendants are charged with 
conspiring for the purpose of extorting money from one George 
Green, to accuse the said Green of having had an adulterous in- 
tercourse with Elizabeth Turner, the wife of one of the defend- 
ants, and with being the reputed father of one of the children 
t)f said Elizabeth. It was contended by the defendant's counsel 
in the case now before the court, that those conspiracies were 
indictable, not because their object was to defame and defraud, 
6 



42 

but, because the conspirators meditated the abuse of judicial 
power, as a means of accomplishing their views; that it fell with- 
in their design, falsely to accuse the prosecutor before a tribunal 
having cognizance of the offence. Although I am ready to ad- 
mit, that a conspiracy to pervert the course of justice is a crime 
of the most reprehensible nature; yet, 1 am not prepared to con- 
cede the point, that the cases above alluded to, were decided on 
any such principle. The Judges place their decisions, expressly 
on the ground of a conspiracy to defame, cheat, and defraud the 
prosecutor. If the Judges who decided those cases, have declar- 
ed that the gist of the offence consisted in the conspiracy to de- 
fame or defraud, on what correct principle can this Court place 
their decisions on distinct and different grounds, by saying, that 
the meditated abuse of judicial power, was necessary to give a 
criminal character to the conspiracy? The exercise of such a la- 
titude of construction, if indulged to any extent, would break 
up the foundations of the Common Law. Where are we to look 
for the principles of that law, but in the reasons given by the 
Judges for their decision? Remove those reasons, and substitute 
others, ad libitum in their place, and what certainty have vou? 
What principle can be considered as established, if we set at 
naught, the experience and learning of our predecessors? The 
administration of justice would be as inconstant as our feelings; 
and that great system, which has heretofore been denominated 
the Common Law, would no longer be worthy of the name; it 
would be a thing of yesterday; of to-day — our bane, and notour 
birth-right. 

But, if the principle of removing decisions from the grounds, 
on which the Judges had placed them, was admissible or correct, 
it could not avail the defendants here, because the cases do not 
shew that the conspirators intended to resort to false judicial ac- 
cusation, as the instrument of effecting their criminal designs. 
They state only a conspiracy, to accuse or charge the prosecutor 
with being the father of an illegitimate child; not a conspiracy 
to charge him before those, who had judicial pswer, to take cog- 
nizance of the supposed offence; and it cannot, correctly be con- 
tended, that a conspiracy to charge a man with an act, necessa- 
rily amounts to a conspiracy to accuse him judicially with having 



43 

committed that act; because, the charge may be made to the in- 
dividual alone, for the purpose of extorting money from him, 
without any design on the part of the conspirators of resorting 
to a judicial accusation to be supported by perjury; and such ap- 
pears to be the case of Armstrong and others, reported in Ven- 
tris, where an attempt was made to arrest the judgment, on the 
ground, that the indictment was insufficient, inasmuch as it did 
not state that the party accused, was carried before a justice of 
the peace, but only averred that the conspirators " went to him, 
and affirmed the charge, with intent to obtain money from him, 
that it might not be further disclosed." And here it must be re- 
marked, that the precedent cited from Tremaine; King against 
Turner and others, and the indictment against Best and others, 
(which is set out at full length in 2d Lord Raymond 1167,) do 
not charge the conspirators with a design to effect the object of 
their conspiracy, by accusing the prosecutor with the suppos- 
ed offence before those who could take judicial cognizance of it. 
As the indictments did not charge the defendants with conspir- 
ing to accuse the prosecutor, before a magistrate or others, hav- 
ing judicial cognizance of the matter of bastardy, how could 
the Courts who adjudged those cases, or how can other Courts 
infer that fact, and make it alone, the foundation of guilt? I 
have always been taught to believe, that an indictment must con- 
tain a legal charge of guilt, and that it cannot be helped by in- 
ference, intendment, or presumption of fact. Before we can 
decide, that the above cases are only to be supported on the 
ground, that the conspirators contemplated the abuse of judicial 
authority, we must be prepared to say, that we are authorized to 
presume the fact, that they did contemplate such an abuse, and 
if we are at liberty to presume that fact, we are equally at liberty 
in every other case to presume any fact whatever; and by this 
new and singular process of presuming, we may make any deci- 
sion suit all cases, or none: and thus the assurance, "that the 
law is uncertain, will become doubly sure." But, even suppos- 
ing that the foregoing cases could be correctly referred to the 
principle, that the conspiracies therein charged, involved the 
contemplated abuse of judicial power, still it would not follow, 
that a conspiracy to defraud or defame by other false means 



44 

would not be criminal. The object of the conspirators would be 
the same in either case, and the means, though varying in their 
nature and degree of criminality, would be equally false in both 
cases. 

Let us proceed to examine other authorities on this subject. 
In Tremaine's Pleas of the Crown, p. 86, King against Record 
and others, (27th Charles 2d.) will be found an information 
against three persons, for a conspiracy to cheat the prosecutor. 
" The conspirators, falsely and fraudulently affirmed to the pro- 
secutor, that one of them, to wit: Charles Record could buy an 
office of Colonel in the states of Holland, of the value of eight 
hundred pounds a year, from one Wayne, and did falsely pre- 
tend, that if the prosecutor would pay 1,000/. for acquiring the 
said office and place of Colonel aforesaid, for the said Record 
during his natural life, the prosecutor should receive the sum 
of two hundred pounds by the year, during the natural Life of 
the said Record; and if the said Record iu the office or place 
aforesaid, should die or be removed, that then the said prosecu- 
tor should have 160/. by the year, for the space of live years, 
after the death or removal of the said Record, and that the con- 
spirators did falsely, fraudulently, and deceitfully affirm to the 
prosecutor, that a pleasant house fit for the habitation of the said 
Record, nigh to the Hague, in Holland, with orchards and gar- 
dens of the value of five hundred pounds by the year, could be 
purchased for eight hundred pounds, and that the said conspi- 
rators did deceitfully and unlawfully incite said prosecutor to 
pay into the hands of the said Record the sum of 400/. towards 
the buying of the said house, (the said conspirators affirming to 
the said prosecutor, that she should have the said house and gar- 
den in mortgage to her, as a security for the said sum.") The 
information then proceeds to state, that the conspirators in pur- 
suance of their wicked conspiracies and practices, did unlaw- 
fully, fraudulently, and deceitfully receive of the prosecutor 
Several large sums of money. 

The King against Alibone, Tremaine's Pleas of the Crown, 
p. 97, (1st of James 2d.) An information was filed against the 
defendant, charging, that he and others did conspire to cheat 
and defraud one Thomas Hilliard, by receiving from him certain 



45 

bonds for the payment, of money, as a consideration for proeur* 
ing a marriage between him and a woman, whom they falsely 
and fraudulently represented to be rich, when in fact she was 
poor and indigent. 

In the same book, (the King against Taydler and others, p. 96,) 
is contained an information, filed in the reign of Charles 2d, 
against six persons, for that they devising, practising, and false- 
ly, unlawfully, and deceitfully intending one Gertrude Crowgy 
widow, and Gertrude Crowgy her daughter, to deceive and de- 
fraud, did draw a conveyance to themselves of some leasehold 
estates, belonging to the said women, and did persuade them to 
execute it, pretending it was intrust only for them, whereas it 
was an absolute conveyance to two of the conspirators. In p. 92 
of the same book, will be found the precedent of an information 
filed against Wilcocks and others, charging, «• that they being 
persons of dishonest conversation, and compassing, and daily 
devising how, by unlawful means they might obtain and acquire 
into their hands and possession the goods of others, in the 31st 
year of the reign of Charles 2d, under colour and pretence of 
buying from one John Dutton 650 yards of cloth, did the said 
piece of cloth, out of the hands and custody of the said John, 
into their hands and possession, falsely and unlawfully, fraudu- 
lently and deceitfully, obtain and acquire, and the said John 
Dutton did then and there falsely, unlawfully, fraudulently and 
deceitfully deceive and defraud." Tremaine's Pleas of the Crown, 
has always been considered by the profession as an excellent 
collection; and Wentworth, in the preface to. the 6th volume of 
his System of Pleading, says, that it is the best arranged, and 
the most useful boo* of precedents of Crown law now extant. 

Roy vs. Skerrett and others, 1 Sidf. 312, S. and others were 
indicted for reading a release to an illiterate person, in other 
words than those in which it was written, by which he was in- 
duced to seal it; a motion was made to quash the indictment, 
"first, because there was no county mentioned, except in the 
margin, secondly," because "the indictment did not state the date 
of the release." and thirdly, "because it did not state, that each 
of them read the release;" but the court overruled all the excep- 
tions and ordered the defendants to plead. 



46 

The Queen against MCarty and Fordenborougb, 2d, Lord Ray- 
mond 1179. The indictment charged, that the defendants falsely 
and deceitfully intending to defraud Thomas Chowne of divers 
goods, together deceitfully bargained to barter, sell, and exchange 
a certain quantity of pretended wine* as good and true new 
Portugal wine, of him, the said Fordenborougb, for a certain 
quantity of hats, of the said Thomas Chowne; and upon such 
bartering, the said M'Carty pretended to be a broker of London, 
when in fact he was not, and the said Fordenborough pretended 
to be a merchant of London, and to trade in Portugal wine, when 
in fact he was no such merchant, nor traded in such wines, and 
that the said Thomas Chowne giving credit to the said fictitious 
assumptions, personating and deceit, did barter and sell to the 
said Fordenborough, and did deliver to the said M'Carty, as the 
broker between the said Chowne and Fordenborough, for the use 
of the latter, a certain quantity of hats of such a value, for so 
many hogsheads of the pretended new Portugal wine. 

Although the indictment in the case did not charge the defend- 
ants in words, with a conspiracy, yet as it charged them with a 
conjunctive act, (that they together committed the offence imputed 
to them,) it must be considered as a prosecution for a conspiracy, 
and it appears by East's Crown Law, p. 824, that judgment was 
given for the Queen in Mich. 4th Anne. 

The Queen against Obeli, 6. Modern. Indictment "for fraudu- 
lently per conspirationem to cheat, J. S. of his money, got him to 
lay a certain sum of money upon a foot-race, and prevailed with 
the party to run booty, and the court would not quash it, upon 
motion, for they said, that being a cheat though it was private in 
the particular, yet was public in its consequences." 

It will be remembered, that in the preceding cases, the meditat- 
ed frauds were levelled against particular individuals, and that 
the acts conspired to be done, would not have been indictable 
cheats, if they had been effected by one, without the aid of con- 
spiracy, and why? because, there were no false tokens which 
were necessary at common law to make a cheat accomplished by 
one individual an indictable offence. There were no privy to- 
kens or false letters as required by the statue of Henry 8th, chap. 
33; and the statute of 50th, George 2d, chap. 24, which declares, 



17 

that "all persons who knowingly and designedly by false pretence 
or pretences, shall obtain from an)' person or persons, money, 
goods, wares or merchandize, with intent to cheat or defraud 
any person or persons of the same, shall be deemed offenders 
against law and public peace," passed long since those cases were 
adjudged. Those authorities do therefore, in my opinion fully 
establish the position, that where persons falsely and deceitfully 
confederate to cheat another, they are guilty of an indictable of- 
fence; although, such cheat, if effected by one without the aid or 
concurence of others, would not have been the subject of a crimi- 
nal prosecution. 

But there are other decisions. 

King against Edwards and others, 8 Mod. (11 Geo. 1st.) The de- 
fendants were indicted, "for that they per conspirationem (inter 
eos habitam) gave the husband money to marry a poor helpless 
woman who was an inhabitant in the parish of B. and incapable of 
marriage, on purpose to gain a settlement for her in the parish of 
A. where the man was settled. And now, it was moved to quash 
the indictment, because it was no crime to marry a woman and 
give her a portion, per curiam. A bare conspiracy to do an un- 
lawful act, to an unlawful end, is a crime, though no act was done 
in consequence thereof. Suppose there is a conspiracy to let 
lands of 10Z. per annum value to a poor woman in order to get her 
a settlement, or to make a certificate-man a parish officer, or a 
conspiracy to send a woman big with a bastard child into another 
parish to be delivered there, and so to charge that parish with 
the child, certainly these are crimes indictable." 

Under the poor laws of England, the respective parishes, are 
bound to support their own poor, and the wife gains a settlement 
in the parish where the husband is legally settled. This was a 
conspiracy, therefore, to defraud the inhabitants of the parish 
of A. by imposing on them, the maintenance of a woman belong- 
to a different parish. The conspirators meditated a private 
wrong, a fraud on the inhabitants of a parish, not a fraud on the 
community at large, the abuse of judicial power formed no in- 
gredient in the conspiracy, and the statutes passed in England, 
in relation to the support of the poor, do not declare such a con- 
spiracy to be illegal. 



4S 

King against Cope and others, 1 Strange 144. The defendants 
were indicted and convicted of a conspiracy, to ruin the trade 
of a prosecutor, who was a card-maker to the King, by bribing 
his apprentice to put grease into the paste, by which the cards 
were spoiled. It has been insisted on by the defendant's counsel, 
that as cards were the subject of exportation, the conspiracy was 
in restraint of trade, and therefore an offence affecting the pub- 
lic. The public interest was then affected, by an injury done to 
an individual. Would it not from thence, seem to follow, that 
conspiracies to defraud large banking institutions, which by their 
loans, promote arts, manufactures and commerce, affect the 
public interest? Nay, on the same principles, are not all conspi- 
racies to impoverish, equally indictable, as all persons who can be 
impoverished, may be said, to contribute in some way or other, 
either directly or indirectly, towards the general interests of 
society? 

King against Robinson and Taylor, 1 Leache's Crown cases ST, 
(1746.) The following is a summary of the facts; Mary Robin- 
son, who lived with Mr. Richard Holland as a servant, in concert 
with Taylor, the other defendant, obtained a license to be mar- 
ried to Richard Holland, and the defendants were married 
in virtue of such license, by the names of Mary Robinson, wi- 
dow, and Richard Holland, batchelor. Mary Robinson was 
dressed in white sattin, with a large black bonnet over her face, 
and was given away by the deputy clerk. Taylor the other de- 
fendant during the ceremony, was so much agitated, that the 
sweat run down his face, and was married in the coat, shirt, neck- 
cloth and wig of Mr. Holland, which Mary Robinson had secret- 
ly provided for the purpose; after the marriage, Taylor put on his 
own clothes, and those of Mr. Holland were put into a box, and 
sent to his house. When the defendants were arrested, they 
confessed the facts, and they were indicted for conspiring together, 
that the said George Taylor should personate Richard Holland, 
and that the said Mary Robinson should be married to the said 
Richard Holland, that she might entitle herself to his estate, and 
in pursuance of which conspiracy they were married accord- 
ingly." 

Upon this evidence it was considered by the counsel on the 
part of the prisoners, that people might marry in whatever name 



49 

they pleased; and although the indictment charged, "that there 
was a conspiracy, yet there was no proof that any one had been 
injured, or that it was done with any view that a third person 
should suffer any injury from it. It must be made out, that there 
has been a combination, to affect the interest, or injure the estate, 
of a third person, before any such act can be construed, a conspi- 
racy; for a conspiracy must be, to do an injury to the person or 
estate of another." The court overruled the objection and de- 
clared, that it was the province of the jury to collect from all the 
circumstances of the case, whether there was an intention or de- 
sign to do a future injury to Mr. Holland; and that it was not 
necessary to prove any direct or immediate injury, or even to 
shew any specific overt act of the conspiracy. The prisoners 
were found guilty, and punished. The foregoing case was decid- 
ed by Chief Justice Willes, Justice Foster, and Baron Reynolds. 
The characters of Willes and Foster, are well known to the pro- 
fessional gentlemen of this country. In relation to the first, it 
may be said, that his views of the law were luminous and pro- 
found, and the authority of his opinions has been seldom ques- 
tioned. Sir Michael Foster stood unrivalled in the knowledge 
of the penal law; and his mild administration of justice, in. 
criminal cases, has embalmed his memory in the affections of a 
grateful country. The counsel for the prisoners, did not there 
contend, that a confederacy to defraud, was not indictable — they 
urged that it was, and that the prosecution must fail, because 
there was no proof of a combination to affect the interest or in- 
jure the estate of a third person; and that the fact of such com- 
bination, could not be inferred from the circumstance of the par- 
ties marrying in fictitious names, as the law did not interdict 
such an act; and the Court in delivering their opinion, adopted 
in their utmost extent the sentiments of the prisoners' counsel, 
for they say, " it was the province of the jury to collect from all 
the circumstances, whether there was an intention or design in 
the prisoners to do a future injury to Mr. Holland." It would 
seem, that this decision is a clear authority for the state; but it 
has been assumed in argument, by the defendants' counsel, that 
the gist of the prisoners' offence, consisted first, in obtaining a 
license to marry in the name of Mr. Holland; and secondly, in im- 



jjj&sing on the parson by marrying in. a fictitious name. It has 
not been shown, tnat those .acts are penal under the common 
law or by the statute law of England, and it is believed they are 
not so. If they were criminal, and constituted the gist of the 
offence, why did the judges limit thu enquiry of the jury to the sim- 
ple fact, whether there was an intention or design in the parties 
to do a future injury to Mr. Holland? Why not tell them at 
once, that they need not puzzle themselves about the intentions 
of the parties, as their guilt stood confessed on the ground of 
having deceived not only the proctor, who sold the license, but 
also the parson who celebrated the marriage? It is most cer- 
tain, from the report of the case, that the juoges who decided the 
cause, never dreamed of such a principle. We are here again 
met by the objection, that this was a conspiracy to pervert the 
course of justice, because as the heirs of Mr. Holland would 
not after his death recognize the existence of his marriage with 
his house-keeper, she would be obliged to have recourse to a 
court of justice, to establish her right. In answer to this objec- 
tion, it is sufficient to say, that the contingent abuse of judicial 
power formed no part of the opinion of the court; and if it had 
any connexion with the subject, it is difficult to conceive how it 
could have escaped the notice of such enlightened judges. If 
the case had been left to the jury, with the simple enquiry, whe- 
ther the prisoners conspired to pervert the course of justice into 
an engine of oppression and wrong, they must have been ac- 
quitted. Their object was to defraud, the means a marriage in 
a fictitious name; all ulterior means by which their criminal 
views were to be accomplished, must necessarily have been the 
subject of future adoption, and therefore formed no ingredient 
in the conspiracy; a reference to the testimony in the cause, will 
prove my views of the subject to be correct. Moreover, as the 
indictment did not charge the fact relied on, (to wit, a design in 
the parties to pervert the court of justice) it cannot upon any 
fair principle of legal construction, be brought to bear on the sub- 
ject, as ■• in a criminal charge, there is no latitude of intention to 
include any thing more than is charged.*' 

The King against Wheatly, 2d Burrows 1125, (1761.) The 
defendant was indicted at common law, for " knowingly selling- 



u 

and delivering; 16 gallons of amber beer, as and for 18 gallons, to 
one Richard Webb, and receiving the price for lb gallons, with 
intent to deceive and defraud the said Webb." 

On a motion to arrest the judgment, Lord Mansfield says, 
" that the fact here charged, should not be considered as an in- 
dictable offence, but left to a civil remedy by an action, is rea- 
sonable and right in the nature of things; because, it is only an 
inconvenience and injury to a private person, arising from that 
private person's own negligence and carelessness, in not mea«- 
suring the liquor upon receiving it, to see whether it held out the 
just measure or not. The offence that is indictable, must be such 
a one as affects the public, as if a man uses false weights and 
measures, and sells by them to all or any of his customers, or 
uses them in the general course of his dealings; so if a man de- 
frauds another under false tokens; for these are deceptions that 
common care and prudence are not sufficient to guard against; 
so if there is a conspiracy, for ordinary care and caution is no 
guard against this, these cases are much more than private in* 
juries, they are public offences. But here it is a mere private 
imposition or deception — no false weights or measures are used£ 
no false token given; no conspiracy; only an imposition upon 
the person whom he was dealing with, in delivering him a less 
quantity instead of a greater, which the other carelessly accept- 
ed; it is only a non-performance of his contract; for which non- 
performance he may bring his action." 

" The law is clearly established and settled, and I think on 
right grounds. But on whatever grounds it might have been ori- 
ginally established, yet it ought to be adhered to, after it is es- 
tablished and settled. Mr. Justice Dennison concurred with his 
Lordship. This is nothing more than an action on the case turn- 
ed into an indictment. 'Tis a private breach of contract, here 
are no false weights, no false measures, nor any false token at 
all; nor any conspiracy; if there be false tokens or a conspiracy t 
it is another case" 

" Mr. Justice Foster. We are obliged to follow settled and 
established rules already fixed by former determinations, incases 
of the same kind." 



52 

"Mr. Justice Wilmot concurred. This matter has been fully 
settled and established, and upon a reasonable foot. The true 
distinction which ought to be attended to in all cases of this 
kind, and which will solve them all, is this— -that in such impos- 
tures or deceits, where common prudence may guard persons 
against the suffering from them, the offence is not indictable, but 
the party is left to his civil remedy, for the redress of the injury 
that has been done him. But, where false weights and measures 
are used, or false tokens produced, or such methods taken to 
cheat and deceive, as people cannot by any ordinary care or 
prudence be guarded against, there it is an offence indictable." 

Lord Mansfield lays down the law, that conspiracies are of- 
fences against the public, on the same grounds that cheats, ef- 
fected by false weights and measures, are indictable, namely— 
because ordinary care and caution is no guard against them. 
And Justice Dennison and Wilmot concur in the opinion — Sir 
Michael Foster intimates no opinion in relation to conspiracies 
to cheat, but uses the following expression, " We are obliged to 
follow settled and established rules already fixed by former de- 
terminations in cases of the same kind." Although it must be 
admitted, that this observation has a direct reference to the case 
then under adjudication, yet it clearly evinces, the high regard 
which he had for the settled and established principles of law; 
and therefore he could never have intended to question the doc- 
trine laid down by the other judges, that a conspiracy to cheat 
was an indictable offence as, he could not but recollect, that 
eighteen years before, he had concurred with Chief Justice Wil- 
les and Baron Reynolds, in establishing that point in the case of 
the King against Robinson and Taylor, 1 Leech's Crown Cases 
39. It is true, that the question whether a conspiracy to cheat 
was indictable, was not directly in issue in the case of King 
against Wheatly, but the court in deciding on the indictment 
then under consideration, were almost unavoidably led into an 
investigation of indictable cheats at common law; and if the va- 
rious principles laid down by Lord Mansfield and his brother 
judges, were to be rejected, because they were not inseperably 
connected with the point raised by the pleadings, a great part 
of the reports of Sir James Burrows might be expunged, without 
a loss to the profession. 



53 

The Judges in the case of King against Wheat) y, did not pro- 
mulgate new principles, but declared the law as it had been 
established for ages. I have shewn that conspiracies to cheat 
and defraud, have been held by solemn adjudications to be 
indictable offences from the 13th year of the reign of Charles 2d, 
down to the year 1746, when the case of the King against Robin- 
son and Taylor. (1 Leech 37,) was decided. The courts of law 
therefore according to Judge Foster, were obliged to follow, set- 
tled and established rules already fixed by former determinations. 
"M hen Lord Mansfield and the other Judges declared, that such 
conspiracies were indictable, they were giving their sanction to 
the decisions of their predecessors, and which it was their duty to 
do, unless they considered the doctrine radically mischievous: 
And can such a sanction be disregarded, if there is any truth in 
the following declaration, made by his Lordship, "I never give 
a judicial opinion upon any point, until I think I am master of 
every material argument, and authority relative to it. It is not on- 
ly a justice due to the crown, and the party in every criminal cause 
where doubts arise, to weigh well the reasons and grounds of the 
judgment, but it is of great consequence to explain them with 
accuracy and precision in open court, especially if the questions 
be of general tendency and upon topcis never before fully consi- 
dered and settled, that the criminal law of the land may be cer- 
tain and known." 4th, Burrows Rep. 2549. King against Wilkes. 
In the decision of the King against Wheatley, the King against 
Wilders, a Brewer, was referred to, by Lord Mansfield, who 
stated, "that Wilders was convicted for a cheat in sending to 
Mr. Hicks, an ale-house-keeper, so many vessels of ale marked 
as containing such a measure, and writing a letter to Mr. 
Hicks, assuring him that they did contain that measure, when 
in fact they did not contain that measure, but so much less, 
and the indictment was quashed." This case was decided in 
the 6th year of the reign of George l;and there does not appear 
to be any printed report of it. But Sir James Burrows says, "I 
have a like account of this case; the court say that the prosecutor 
could not have been imposed upon without his own carelessness, 
and instanced the case of selling an unsound horse, affirming him 
to be sound, and they held that such private unfair dealings. 



54 

which did not affect the public, were not indictable crimes, unless 
accompanied by false tokens or conspiracy, or selling by jaise 
weights and measures" 

King against Rispall 3d. Burrows 1320. The defendants and 
others, were indicted at the Westminster sessions of the peace 
for conspiring falsely and without any probable cause, to charge 
a man with having taken out of a bag (not alledging the taking 
either to have been felonious or unlawful;) a quantity of human 
hair, thereby to extort money from him; upon the conviction of 
the defendant, the proceedings were removed into the court of 
King's bench, by Certiorari, where a motion was made to arrest the 
judgment, 1st, because an indictment for such a conspiracy did not 
lie before the general sessions of the peace; 2dly. because the fact 
which the defendant conspired to charge the prosecutor with, 
was no offence, as the indictment did not alledge the taking to be 
Unlawful or felonious. 

The court were of opinion that the justices of the peace had 
jurisdiction in the case. A conspiracy being a trespass and 
tending to a breach of the peace, and they held, that the indict- 
ment was well laid, and that the gist of the offence is the unlaw- 
ful conspiring to injure the man by the false charge. 

I shall here close my examination of the British decisions 
from the 13tb, Charles 2d, down to the period of our revolution; 
they all confirm the doctrine, that confederacies to cheat are 
indictable at common law; and it must not be forgotten, that 
during the period, in which the forgoing numerous cases were 
decided, no adjudged case is to be found impugning this doctrine. 
The principle is established by a series of judgments, "the even 
tenor" of which is not interrupted by a solitary conflicting au- 
thority As to the reasons on which this doctrine rests; union 
imports strength and power, and the ordinary caution of indi- 
viduals presents but a feeble guard against combination. Confe- 
deracies for illegal purposes, whether they be directed against 
public peace, or against the safety and estate of another, are 
of mischievous tendency; they are formed in defiance of the law, 
und in disregard of social right; they are of evil example, and if 
placed beyond the pale of criminal jurisdiction, may endanger 
the well-being of society. 



55 

The court of King's bench in the case of the King against Ris~ 
pall and others, declare, that conspiracies are offences against 
the public, because they tend to a breach of the peace; libels, are 
indictable on the same groundjbut unwritten slander is the subject 
of a civil remedy only; so at common law, private cheats could 
only be redressed by a civil action, while confederacies to effect 
them, were indictable, because they endangered the public peace. 

1 shall here take the liberty of introducing the opinion, of a 
most learned Judge, on the doctrine of conspiracy. Judge Par- 
sons in deciding the case of the commonwealth against Judd and 
others, reported in 2d, Massachusetts reports 329, uses the fol- 
lowing language. "The offence is complete, when the confedera- 
cy is made, and any act done in pursuance of it, is no constituent 
part of the offence, but merely an aggravation of it. This rule of 
common law is to prevent unlawful combinations; a solitary offen- 
der may be easily detected and punished, but combinations 
against law, are always dangerous to the public peace, and private 
security. To guard against the union of numbers to effect an 
unlawful design is not easy, and to detect and punish them is 
often difficult; the unlawful confederacy is therefore punished to 
prevent the doing any act in execution of it " 

The Bill of Rights, (3 Sec.) declares, that the inhabitants of 
Maryland, are entitled to the benefit of the common law of Eng- 
land, and the trial by jury according to the course of that law. 
Wnere are our judges in the administration of justice, to look for 
the evidences of the common law? Are we not told by the high- 
est authority, that "judicial decisions are the principal and most 
authoritative evidence that can be given of the existence of such a 
custom as shall form a part of the common law," and are we 
not instructed by the same authority, "that the monuments and 
evidences of the common law, are contained in books of reports 
and judicial decisions and in the treatises of learned judges, 
preserved and handed down to us, from the times of the highest 
antiquity." Established principles ought to be adhered to "as 
well to keep the scales of justice even and steady, and not liable to 
waver, with every new judge's opinion, as also because the law 
being solemnly declared and determined, what was before un> 
certain is now become a permanent rule, which it is not in the 
breast ef any subsequent judge to alter or vary from* according to 



56 

his own private sentiments, he being sworn to determine not ac- 
cording to his own private judgment, but according to the known 
laws and custom of the land; not delegated to pronounce a new 
law, but to expound and maintain the old one." 

Stare decisis is therefore a sacred maxim, and if you remove 
it, you remove with it all the land-marks of the common law: 
and what do you substitute in their place? The discretion of 
judges. And this discretion does not differ from the common 
law, (which I hold to be one of the great bulwarks of our rights) 
less, than slavery from freedom, or the free institutions of our 
country, from the despotism of Turkey. 

The King against Eccles, 1 Leech's Crown Cases 274, (decided 
in 178S); the first count charged, that the defendant with divers 
other persons, to the jurors unknown, "wickedly and by indi- 
rect means, intending to impoverish one H. Booth, and to de- 
prive and hinder him from using and exercising the trade and 
business of a tailor, which he used and exercised, did fraudu- 
lently, maliciously, and unlawfully confederate and conspire, by 
wrongful and indirect means, to impoverish the said Booth, and 
to deprive and hinder him from following and exercising his 
aforesaid business of a tailor; and that the said conspirators did 
in pursuance of such conspiracy, indirectly, unlawfully, mali- 
ciously and unjustly, prevent and hinder him the said H. Booth 
from following his said trade and business, and thereby did im- 
poverish the said H. Booth, to his great injury, to the evil exam- 
ple, &c. and against the peace, &c." The second count stated 
the conspiracy in the same words as the first, but did not charge 
that the conspirators, did any thing in execution of the conspi- 
racy. The defendant was convicted, and Chambre and Topping- 
moved to arrest the judgment, on the ground, that the indict- 
ment contained only a general charge of conspiracy, whereas it 
ought to have stated the acts that were committed to impoverish 
Booth, in order that the defendant might thereby have had no- 
tice of the particular charge, he was called upon to answer, and 
that the court might see, that the alledged conspiracy really ex- 
isted. Lord Mansfield, (without hearing the other side) "the 
conspiracy and object of it are both stated in the indictment, 
but it is contended that the means by which the intended mis- 



57 

chief was effected, also ought to have been particularly set forth, as 
in the case of Rex against Stirling and others, but this is certainly 
not necessary, for the offence does not consist in the doing the 
acN by which the mischief is effected, for they may be perfectly 
indifferent, but in conspiring with a view to effect the intended 
mischief, by any means. The illegal combination is the gist of 
the offence; persons in possession of any articles of trade* may 
sell them at such prices as they individually please, but if they 
confederate and agree not to sell them under certain prices, it is 
a conspiracy. So any man may work at what price he pleases, 
but a combination not to work at certain prices is an indictable 
offence" Willis, justice. "All the cases on the subject were 
fully considered in the case of Rex against K.i.nmersly, in which 
it was decided, that in an indictment for a conspiracy, it is 
not necessary to state the means by which the conspiracy was 
effected." 

Buller, justice. "The indictment states, that the defendants 
intending unlawfully, and by indirect means, to impoverish the 
prosecutor, unlawfully did conspire, &c but nothing need to 
have been stated about the means, for the means are matter of 
evidence to prove the charge, and not the crime itself. The in- 
dictment therefore states too much, rather than too little." The 
defendants received judgment. It cannot but be remarked, that 
the learned counsel who conducted the defence in the above case, 
did not even intimate an opinion that a conspiracy to impoverish 
another was not indictable; their objection rested solely on the 
ground, that the means by which the injury was to be effected, 
ought to have been set forth; and it is difficult to conceive why 
Chambre, so celebrated for his legal learning, and who after- 
wards became a distinguished ornament of the bench, failed to 
press the objection, unless from a solemn conviction, that the 
doctrine was too firmly established to be even questioned in a 
court of justice. Here for the first time, the doctrine of con- 
spiracies came under the judicial review of Judge Buller, to 
whose immortal honor it has been said, that " no person if guil- 
ty, would choose to be tried by him, but that every person, if in- 
nocent, would prefer him for his judge." 
8 



58 

King against Lara, 6 Dumford and East 565, (J 796); " an Lo- 
dicftraent at common law, charging, that the defendant, deceit- 
full y intending by crafty means and devices, to obtain possession 
of certain lottery tickets the property or A., pretended that he 
wanted to purchase them for a valuable consideration, and deli- 
vered to A. a fictitious order, purporting to be a draft on a bank- 
er for the amount, which he knew he had no authority to draw, 
and that it would not be paid," by virtue of which he obtained 
possession of the tickets, and defrauded the prosecutor of the 
value, cannot be maintained, inasmuch as it does not charge the 
defendant with having used any false token to accomplish the 
deceit. 

Erskine and other counsel who were concerned for the pro- 
secution, after premising that the indictment was framed at 
common law, and not on the statutes of 33, H. 8, chap. 1, or 30th 
George 2d, against persons obtaining money or goods by false 
tokens or pretences, (as the property obtained were lottery tick- 
ets, which, according to the principles laid down in other cases, 
could not properly fall under the denomination of either money 
or goods) admitted, that the case must be governed by the rule 
laid down in Rex against Wheatly; that in the case of a fraud 
upon an individual, it was incumbent on them to show either a 
conspiracy which was not charged in the case, or that the fraud 
was effected by means of a false token or a false pretence, and 
that it was of such a nature, against which common prudence 
could not guard. The counsel then proceed to argue, that the 
pretences charged amounted to false tokens. It cannot escape 
observation, that the counsel for the prosecution in the discussion 
of the above case, were compelled to admit in its full extent, 
the correctness of the doctrine as laid down in the case of the 
King against Wheatly. The court decided, that the indictment 
could not be sustained, as no false token was used, and, that 
the giving the check, was only adding one lie to another. I cite 
this case for the purpose of showing that Lord Kenyon in deli- 
vering his opinion, gave his unqualified sanction to the doctrine 
advanced by Lord Mansfield and the other judges, in the case 
of the King and Wheatly; his words are, " the case of the King 
against Wheatly, seems to have clearly established the true 



59 

boundary between those frauds that are, and those that are not 
indictable at common law. Mr. Justice Dennison there said, 
there must either be a false token or a conspiracy" 

The King against Turner and others, 13 East 228; the mar- 
ginal note is as follows: "An indictment will not lie for conspir- 
ing to commit a civil trespass upon property, by agreeing to go, 
and by going into a preserve for hares, the property of another, 
for the purpose of snaring them, although alledged to be done 
in the night by the defendants, armed with offensive weapons 
for the purpose of opposing resistance to any endeavour to ap- 
prehend or obstruct them." Lord Ellenborough says, "that all 
the conspiracies proceed on the ground, that the object of com- 
bination is to be effected by some falsity, insomuch, that in Tay- 
lor and Towlin's case, in Godbolt 444, it was held necessary, 
that the indictment should be false et malitiosl." Upon a re- 
ference to the case ^1 Godbolt, it will be found that the defend- 
ants were indicted for conspiring falsely, to indict another per- 
son for a capital crime. Richardson, justice, there said, "that 
in conspiracy, the matter must be laid false et malitiose." And 
Hyde, chief justice, said, " that upon probable cause, a man 
might accuse another before any justice of the peace of an of- 
fence, and although his accusation be false, yet the accuser shall 
not be punished for it." The case in Godbolt then establishes 
the principle, that in conspiracies to indict, the gist of the of- 
fence consists in malice and falsity; and if the law was not so, 
no two persons could conjointly prosecute another, however pal- 
pable his guilt might be, without the danger of being considered 
as criminal conspirators. But does this case vyarrant the doc- 
trine laid down by his Lordship, that all the cases in conspiracy, 
proceed on the ground, that the object is to be effected by some 
falsity? If so, conspiracies to murder, to rob,_or to commit 
burglary, or arson, must be expunged from the criminal code, 
because falsity is not a necessary ingredient in them. The ge- 
neral proposition laid down by Lord Ellenborough, is therefore 
not warranted by the authority, on which he relies for its sup- 
port; and great as my respect must be for the learning of this 
distinguished judge, I cannot consent, that the best established 
principles can be destroyed by his dictum. 



60 

His Lordship proceeds: "The case* against Eccles and others, 
was considered as conspiracy in restraint of trade, and so far a 
conspiracy to do an unlawful act, affecting the public. But I 
should be sorry that the cases in conspiracy against individuals, 
which have gone far enough, should be pushed further still. I 
should be sorry to have it doubted, whether persons agreeing to 
go and sport on another's ground, or in other words, to commit 
a civil trespass, should thereby be in peril of an indictment, 
which would subject them to an infamous punishment." 

According to his Lordship's notions, the conspiracy in the 
case of the King against Eccles, was indictable, because it was 
in restraint of trade; we have already seen that this conspiracy 
was to prevent and hinder a tailor from pursuing his business, 
and thereby impoverishing him. The meditated victim of the 
conspiracy was an individual; on the same principle, the pub- 
lic interest must be affected by a conspiracy to impoverish a 
farmer, merchant, or any person, as well as* a tailor, because 
the resources of all contribute to the general prosperity of the 
country. 

His Lordship was not a judge when the case of the King 
against Eccles was decided, and it does not appear from the 
printed report of the case, that the decision was made on the 
ground on which he has been pleased to place it. And it can- 
not escape observation, that the case of the King against Eccles, 
the authority of which is not controverted by Lord Ellenbo- 
rough, is in the very teeth of his favourite theory, that falsity 
is an essential ingredient in conspiracy. For the judges there 
decided, that it is sufficient to state the conspiracy, and the ob- 
ject of it, and that it is not necessary to set out the means by 
which the conspiracy was to be accomplished; now if the means 
are not stated, it cannot appear by the record, whether they were 
false or deceptive. But even admitting, that falsity must enter 
into the constitution of a conspiracy; the indictment now under 
consideration, charges the defendants with using false and de- 
ceptive practices, and therefore is sustainable under the au- 
thority of Lord Ellenborough's opinion. This view of the sub- 
ject, renders any further comment on the case of King against 



I 



6t 

Turner and others unnecessary, as it does not assimilate itself 
in principle, to the case now before the court. 

Kin«; against Berenger & others, Maule & Selvvyn v. 3, 68. The 
indictment states, "that the defendants contriving by false reports 
and rumors, to induce the subjects of the King to believe, that a 
peace would soon be made between England and France, and 
thereby occasion without just cause, a great rise and increase of the 
public funds, and to injure and aggrieve the subjects of the king, 
who should on the 21st Feb. 54 year of the king, purchase, or buy 
any share in the government funds,did conspire to propagate among 
divers subjects of London, divers false reports and rumors, that 
ISapoleon Bonaparte was killed, and that a peace would soon be 
made between England and France, and that the defendants 
would by such false rumors, as far as in them lay, occassion an 
increase and rise in the public funds, and other government 
securities, with a wicked intention, thereby to injure and aggrieve 
all the subjects of the King, who should on the 21st of February, 
aforesaid, purchase or buy any shares in the public government 
funds." The defendants being convicted, a motion was made to 
arrest the judgment on the ground, that the indictment charged 
no crime, and if it did, it was defective, inasmuch as it did not 
particularize the individuals who were to be defrauded. The 
court over-ruled the motion. Lord Ellenborough says, "a public 
mischief is stated as the object of the conspiracy; the conspiracy 
is by false rumors to raise the price of the public funds, and the 
crime lies in the act of conspiracy, and combination to effect that 
purpose. The purpose itself is mischievous, it strikes at the price 
of a vendible commodity by means of false rumors; it is a fraud 
levelled against the public, for it is against all such as may have 
any thing to do with the funds, on that particular day. It seems 
not to be necessary to specify the persons who became purchas- 
ers on that day." Le Blance states, "that it may be admitted, 
that the raising or lowering the price of the funds is not per se 
a crime — a man may have occasion to sell out a large sum, which 
may have the effect of depressing the price of stocks or may buy 
in a large sum, and thereby raise the price on a particular day, 
and yet he will be guilty of no offence. But if a number of per- 
sons conspire to raise the funds on a particular day, this is an of-r 



62 

fence, and the offence is not in raising the funds simply, but in 
conspiring by false rumors to raise them on that particular day. 
The offence being to raise the funds on a particular day, its 
object was to injure all those who should become purchasers on 
that day, and not some individuals in that particular.** 

Bailey. "To raise the public funds may be an innocent act, 
but to conspire to raise them by illegal means, and with a crimin- 
al view is an offence, an offence not affecting the public in an 
equal degree, as if it were done with intent to affect the purchas- 
es of the commissioners for the redemption of the national debt, 
which would be affecting the public in its aggregate capacity, but 
still if completed, it will affect a large portion of the King's sub- 
jects who have occassion to purchase on that day, and it is not 
necessary to constitute this offence, that it should be prejudicial 
to the public in its aggregate capacity, or to all the King's sub- 
jects, but it is enough, if it be prejudical to a class of the sub- 
jects." 

Dampire says, that "he cannot raise a doubt, that this is a com- 
plete crime of conspiracy, according to any definition of it. 
The means used were wrong, they were false rumors. The ob- 
ject is wrong, it was to give a false value, to a- commodity in the 
public market, which was injurious to those who had to purchase 
on that day." 

I humbly conceive, that this case fully supports the indictment 
against the present defendants. It was a conspiracy by false 
rumours, to defraud those persons, who on a certain day, might 
become purchasers of the public stock; they might be few or 
many, but still, it was but a conspiracy to defraud individuals. 
And Justice Bailey expressly declares, that it is not necessary 
that it should be prejudicial to all the King's subjects, but it is 
enough, if it is prejudicial to a class, and Lord Ellenborough 
says, it is a fraud levelled against the public, because it is against 
all such as may have any thing to do with the funds on that day. 
On what correct principle, can it be contended, that a confedera- 
cy to defraud all such persons as might become purchasers of 
stock on a certain day, should be a public offence, and that a 
conspiracy to defraud the stockholders of the United States 
Bank, (for the President and Directors of that institution, are 



68 

only the legal representatives of the proprietors of shares) should 
not be equal iy criminal? Does the conspiracy solely derive its 
criminal character from the circumstance, that the meditated 
fraud was levelled against certain unknown persons? Surely this 
distinction is too subtle for judicial reliance. If there was a dif- 
ference, it would rather seem to operate against the persons ac- 
cused in those cases, where the fraud was directed against the 
vested rights of individuals. Was not the purpose of the present 
defendants, mischievous? Did it not strike at the value of a ven- 
dible commodity in the market, by depreciating its productiveness, 
and thereby injuring the then stockholders, and all persons who 
should become such, before the alledged fraud wasdiscovered? 

This decision most clearly demonstrates, that it is not neces- 
sary that the act conspired to be done, should per se be an in- 
dictable offence. To raise or lower the funds, may under certain 
circumstances be an innocent act; but where the object of the 
conspirators is to defraud others, by giving a false value to a 
commodity, by false rumors, the act of conspiring becomes in 
itself a substantive offence. 

The latest English decision which has been brought within the 
view of the court, is that of the King against Henry and others. 

2nd Barnwell and Alderson, 204. 

The defendants were found guilty on an indictment, which 
charged, that they unlawfully did conspire and combine together, 
by divers false pretences and subtle means and devices, to obtain 
and acquire to themselves of and from P. D. and G. D. divers 
sums of money, of the respective monies of the said P. D. and 
G. D. and to defraud them respectively thereof to the great da- 
mage &c. 

A motion was made to arrest the judgment, because the indict- 
ment was framed too general, that the words "by divers false 
pretences, and subtle means and devices," gave no information to 
the defendants of the specific charge, against which they were 
to defend themselves. But the court over-ruled the motion, and 
Abbott chief justice said, "that the law did not require the 
means by which the conspiracy was to be accomplished to be set 
out, as the offence of the conspiracy may be complete, although 
the particular means are not settled and resolved on, at the time 



64 

• 
of the conspiracy." Bailey declares, that when persons have 

once agreed to eheat a particular person of his money, although 
they may not have then fixed on any means for that purpose, the 
offence of conspiracy is complete, and that the case cannot be 
distinguished from that of the K ng against Eccles, which decid- 
ed that the means need not be stated." Holroyd says, "it is 
sufficient to state the conspiracy, and the object ol the conspira- 
cy in the indictment." It will here be noticed, that the authority 
of King against Eccles is recognized. 

The counsel for the defendants have contended, that this case 
cannot be an authority in favour of the present prosecution, be- 
cause to effect a cheat by false pretences, is an indictable offence 
under the statute of 30th George 2d, chap. 24, (which has not 
been extended to this country,) and that therefore the conspiracy 
in the above case was to commit an offence which would have been 
indictable if committed by one person alone. Let us test this 
principle. It is clearly settled, that an indictment charging a 
defendant with obtaining money by false pretences, if it does 
not state what the false pretences were, cannot be sustained; 
and this specification is necessary on three grounds. 1st, That 
the defendant may know what he is to defend. 2dly, That the 
court may see what punishment they are to inflict. And 3dly, 
That as there are some pretences which are not within the sta- 
tute, they must be set out, that the court may see what they are. 
Rex vs. Mason, 2d Term Reports 581. 2d Leech's Crown Cases 
790. East's Crown Law 837, Faller's case. If then a conspiracy 
to cheat only, becomes indictable on the principle, that it is a 
statutory offence to cheat by false pretences, it is essential that 
the pretences should be stated in the indictment, because they 
are of the very essence of the crime. If you make the statutory 
false pretences, the foundation of the criminality of the conspi- 
racy; if they constitute the corpus delicti, you must upon every 
principle of correct pleading set them forth, because it is a imix- 
im of our law, that whatever circumstances are necessary to con- 
stitute the crime imputed, must be set out. 

But what is the language of the judges in the case. They say, 
that the means by which the conspiracy was to be accomplished, 
need not to be set out, as the offence of the conspiracy may be 



m 

complete, although the particular means are not seftled and re* 
solved on at the time of the conspiracy. How then can we refer 
the criminality of the conspiracy, solely to the means to be used 
in the accomplishment of the fraud, when the court decide that 
it is not necessary that the means should be resolved on at the 
time of conspiring. By what spirit of prophecy can we diviue„ 
that the meditated means were interdicted by the statute, when 
the indictment does not state their nature and character. This 
cas , in my apprehension, has no connexion with the statute of 
George the 2d.; and I view it as a complete authority in favour 
of the present prosecution. 

Christian, in his notes to Blackstone's Commentaries, 4 vol, 
p. 156, states, that every confederacy to injure individuals, or 
to do acts which are unlawful or prejudicial to the community, is 
a conspiracy. 

Chitty, in his Criminal Law, vol. 3, title Conspiracy, 566, uses, 
the following language: " But the object of conspiracy is not con- 
fined to an immediate wrong to particular individuals, it may 
be to injure public trade, to affect public health, or to violate 
public police, to insult public justice, or to do any act in itself \U 
legal." And in support of those propositions, he cites many au- 
thorities, among which are some of those on which i have already 
commented. 

The various authorities which have been the subject of examine 
ation, constitute in my opinion, " a mass of demonstration, 
than which nothing more satisfactory can be offered to the hu- 
man mind." 

The position, " that in many cases an agreement to do a cer^ 
tain thing, may be considered as the subject of an indictment for 
a conspiracy, though the same act, if done separately by each in- 
dividual, would not have been illegal," has been supported by 
many of the decisions herein before referred to, and other au- 
thorities in support of the same principle, might be produced. 
As in the case of journeymen conspiring to raise their wages, 
each may insist on raising his wages, if he can; but, if several 
meet for the purpose, it is illegal, and the parties may be in- 
dicted for a conspiracy. 6 Term Rep. 636. So the offence ofse- 
dnction is not cognizable by our courts, but if persons conspire 
9 



66~ 

to entice a female under the age of twenty-one years, from her 
parents, and to place her in the power of one of the conspirators, 
for the purpose of facilitating an illicit sexual intercourse be- 
tween them, the law deems such an agreement criminal. King 
against Sir Francis Delavall and others, 3d Burr. Rep. 1434. 

I shali briefly notice some of the American decisions on the 
subject of conspiracies, 1 Mass. Rep. p. 473. Commonwealth 
against Ward and others. The defendants were indicted, con- 
victed and received judgment for conspiring to obtain posses- 
sion of the goods of one William P. Davis, and then to abscond 
out of the commonwealth and defraud him thereof. The indict- 
ment charged, "that the defendants in pursuance of said con- 
spiracy did pretend to the said William P. Davis, that they were 
about to open a retail grocery store, in the town of Portland, for 
selling goods in that business, and that they had hired a conveni- 
ent house in that town for that purpose, and that the said de- 
fendants did request the said Davis to furnish them with certain 
goods on credit, and that the said Davis confiding in the said 
deceitful practices, did furnish them groceries on a credit; 
whereas, in truth and in fact, the said defendants never intended 
to open a grocery store for the vending of goods in that business, 
but were idle and dissolute persons, wholly unable to pay for the 
said goods, and did afterwards dispose of the same greatly below 
their value." 

In 2d Mass. Reports. The Commonwealth against Judd and 
others. The defendants* were indicted for a conspiracy " to 
manufacture certain materials, one of which was good indigo 
of foreign growth, a base composition resembling genuine indi- 
go of the best quality and foreign growth, with a fraudulent in- 
tent that the same should be exposed to sale, and sold at public 
auction as genuine indigo of the best quality; and that in pursu- 
ance of the conspiracy, they exposed the base composition for 
sale at auction, and sold it for genuine indigo of the best quality 
and foreign growth. The jury found that the defendants were 
guilty of a conspiracy to make base indigo, with a fraudulent in- 
tent to sell the same, but they did not find that the same was 
sold at auction in the manner set forth." 



67 

The court supported the indictment, and Judge Parsons in de- 
livering the opinion of the court, expressed himself in the lan- 
guage which has been before noticed. 

Commonwealth against Tibbits, sen'r, and Tibbits, jun'r. 2d 
Mass. Rep. 536. The defendants were indicted for conspiring 
to accuse one Ichabod Rollings of receiving and concealing stol- 
en goods, and in pursuance of said conspiracy, falsely charg- 
ing the said Rollings in the hearing of divers citizens, with con- 
cealing in his dwelling house or barn, divers goods, which had 
before been stolen from one W. and in further pursuance of the 
said conspiracy, fraudulently placing the said goods under the 
floor of the said Rollings's dwelling house or barn, with a design 
that he should be falsely accused of receiving and concealing the 
same. The court decided, that a conspiracy to charge a person 
with a crime, and in pursuance of the conspiracy, falsely to afr 
firm that he is guilty, is an indictable offence without procuring 
any legal process; that the gist of the offence was the conspiracy, 
that the placing of the goods was mere matter of aggravation, 
and that therefore the uncertainty arising from the expression 
dwelling house or barn, was immaterial. 

In the states of New-York and Pennsylvania, conspiracies 
among journeymen shoemakers and bootmakers not to work un- 
der certain wages, have been adjudged to be indictable offences* 
In the Court of Oyer and Terminer and Goal Delivery for Balti- 
more county, it was decided, that a conspiracy to cheat and de- 
fraud was the subject of a criminal prosecution. But motives of 
delicacy forbid me from relying on this case as an authority, as 
I presided in that court when the decision was given. 

The counsel for the defendants have argued, that the statute 
de conspiratoribus passed in the 33d year of the reign of Ed- 
ward 1st, gave a definition of all the conspiracies indictable at 
common law; and, that no other conspiracies than those recited in 
the statute, were considered as criminal offences at the epoch of 
colonization, and inasmuch as conspiracies to cheat and defraud, 
were not then deemed to be criminal, the modern common law 
cannot be a rule of action for us, as our forefathers onlv brought 
with them, such parts of the common law, existing at the time 



68 

of their emigration, as were adapted to their local and other cir- 
cumstances. 

I shall briefly examine this objection. The statute of 33d, Ed- 
ward 1st. De Conspiratoribus declares, that "conspirators be 
the j, that do confederate or bind themselves by oath, covenant, 
or other alliance, that every of them shall and will bear the other 
falsely and maliciously to indict, or cause to indict falsely, to 
move and maintain pleas, and also such as cause children with- 
in age, to appeal men of felony, whereby they are imprisoned 
and sore grieved, and such as retain men in the country, with 
liveries or fees, for to maintain their malicious enterprizes, and 
this extendeth as well to the takers as the givers; and stewards 
and bailiffs of great lords, who by their seigniory, office and pow- 
er, undertake to bear or maintain quarrels, pleas or debates, 
that concern other parties, than such as touch the estates of their 
lords or themselves. This ordinance and final definition of con- 
spiracy, was made and accorded by the king and his council in 
parliament, in the 33d of his reign; and it was further ordained, 
that the justices assigned to the hearing and determining felonies, 
should have a transcript thereof" 

What was the object of the act? Was it to give a particular 
definition of the conspiracies therein mentioned, or did the par- 
liament intend, that no conspiracies should be indictable, unless 
they fell within some one of the enumerated classes of the act? 
I hold the first to be the true exposition, and it will be found that 
this construction has been given to the act, from the reign of 
Edward the 3d, down to the year 1817, when the case of the 
JCing against Henry and others, reported in 2d Barnwell and 
Alderson 204, was decided. 

In the Book of Assizes, 27th Edward 3d, chap. 44, is to be 
found the following passage, "And note that two were indicted 
for confederacy, each of them to support the other, whether the 
matter was true or false, notwithstanding that nothing was al- 
ledged to have been actually done. The parties were put to an- 
swer, because it was a thing forbidden by law." So in the next 
section of the same book, it is declared, " that inquiry shall be 
made concerning conspirators and confederators, who bind them- 



69 

selves by oath, covenant, or other agreement, that each will sup» 
port the enterprizes of the other, whether true or false." 

Now it is most manifest, that the above cases do not fall with* 
in any of the instances enumerated by the statute De Conspira* 
toribus. They were not conspiracies, falsely to indict or to move 
and maintain pleas, nor to cause children within age to appeal 
men of felony, nor to retain men in the country with liveries to 
maintain malicious enterprizes; nor were they included within the 
last clause of the statute, which relates to the stewards and bai- 
liffs of great lords; and although the conspiracy comprised leagues 
offensive and defensive, still if the conspirators had been indict- 
ed on any branch of the statute, they must have been acquitted, 
because they did not conspire to do any of the specific acts which 
are there forbidden. 

This decision is not only recognized by Lord Coke in the Poul- 
terers' case, (9th Rep. 57,) but it is adopted by Hawkins in his 
Pleas of the Crown, 1st vol. p. 348, 349. Nay, that important 
principle of law, which declares that conspiracies are substan- 
tive offences, and punishable though they be not executed, rests 
on this decision in the Book of Assize, as its foundation. 

Noys Reports 130, "Breerton and Townsend upon especial 
day, decided in the 12th year of James 1st. An information by 
Mr. Attorney against Sir Thomas Breerton, Richard Breerton 
his brother, and Sir Henry Townsend and his wife, for the sup- 
pressing of a will, and all the defendants, but Sir Henry were 
fined to the King," upon a reference to the case it will be found, 
that the defendants attempted by this fraud to disinherit the wife 
of the relator or prosecutor. What was the form of the count 
contained in the information does not appear, but as several per- 
sons were convicted, they were necessarily charged with a con- 
junctive act. Nay, it is impossible that two persons could 
be jointly concerned in the suppressing a will, unless there was 
an agreement or combination between them to do the act. And 
this case is referred by East, in his valuable treatise on criminal 
law, (volume 2d. 823.) to the head of cheats effected by conspira- 
cy. There was no positive law of England, declaring that the 
suppression of a will, should be a criminal offence, and if the 
suppression had been the act of a single person, it would have 



70 

been only a private fraud, but when the fraud was effected by the 
process of conspiracy, it became an indictable offence. Thus it 
appears, that as early as the reign of Edward 3d, other conspira- 
cies than those enumerated in the statute of S3 Edward 1st. 
were deemed to be criminal, and that in the reign of James the 
1st, a conspiracy to defraud another by the suppression of a 
will, was the subject of a criminal prosecution. And it must be 
remembered, that those decisions were made before the coloniza- 
tion of Maryland, the charter of the province bearing date in the 
8th year of the reign of Charles the 1st. The idea that the 
statutes of S3d of Edward 1st, contained a definition of all the 
conspiracies indictable at common law, does not appear to have 
suggested itself to any of the professional gentlemen, who argued 
the cases which have been the subject of examination; and that 
the judges did not entertain such an opinion, is most manifest, or 
they could not have given the greater part of the decisions which 
have been noticed in this opinion. Lord Ellenborough, who 
thought the doctrine of conspiracy had been carried far enough, 
supported the indictment in the case of the King against Berenger 
and others, which he could not have done, if he had supposed 
that the statute of Edward 1, comprized all indictable conspira- 
cies. That such was the effect of the statute, has not been inti- 
mated by any judge from the time of Edward 3d, down to the year 
181T, and if an uniform construction, has judiciously prevailed, 
in relation to this statute, for a period of more than four hundred 
and forty years, is it befitting any court, to say, at this late 
period, that their predecessors have been grossly ignorant of the 
law, which they were sworn to administer? Such an opinion 
would subject the court which should pronounce it, to the serious 
imputation of sacrificing the accumulated wisdom of successive 
ages, and the best established principles, to their own peculiar 
theories of right and wrong. Nay, if the construction given by 
the counsel for the defendants, to this act of parliament is right, 
not only conspiracies to defraud, but conspiracies to murder, to 
rob, to insult public justice, by confederating to impose false 
certificates of a fact on the court, (6 Term. Hep. 366,) with a 
variety of others, cannot at common law be the subjects of a 
criminal prosecution. 



„ ft 

But even supposing that there was no adjudged case on the 
subject, before the colony was settled, still it cannot follow that 
the offence was not then indictable under the principles of the 
common law. 

What is the common law of England? Is it not a great sys- 
tem, in its nature, one and perpetual, not changing nor varying 
like the statutes of a country, but having its foundation laid deep 
in the eternal principles of justice? It is a mass of principles, 
which unfold themselves as the rising eccegencies and occasions 
of society require their application; and that which was the com- 
mon law, at the epoch of oar revolution, was always the common 
law. 

This is evident from the consideration, that although subse- 
quent decisions may over-rule former ones; the common law is 
not thereby changed; for in such a case the subsequent judges 
"do not pretend to make a new law, but to vindicate the old one 
from misrepresentation. They do not declare the former sen- 
tence was bad law, but that it was not law." Precedents do 
not constitute the common law, it exists in principles, indepen- 
dent of decisions, which are high and authoritative evidence of the 
law. One of the most distinguished judges that ever shed lustre 
around the seat of justice, in delivering the opinion of the court, 
expresses himself thus, "The law of England would be a strange 
science indeed, if it were decided on precedents only. Prece- 
dents serve to illustrate principles, and give them a fixed cer- 
tainty. But the law of England which is exclusive of positive 
law enacted by statute, depends on principles, and those princi- 
ples run through all the cases, according as the particular circum- 
stances of each have been found to fall within the one or the 
other of them, (by Lord Mansfield, Cowper 39.) If our fore- 
fathers brought only that part of the common law which had 
been established by judicial precedents, and if we their decend- 
ants, can only claim the benefit of so much as they brought with 
them, our condition must be very different from what we have 
fondly imagined it was; and it would be no difficult matter, 
under such an hypothesis, to prove that our judicial tribunals 
from the highest to the lowest, have been in the constant habit of 
usurping authority, and of imposing their own notions on the 



community, as part of the common law. On what footing arc to 
be placed all our decisions on the subjects of Insurance, Freight, 
Promissory Notes, Bills of Exchange &c. In what books of 
reports or writings of the sages of the law, compiled before the 
period of emigration, do you find an authority or precedent fixing 
the important principles by which those contracts are governed, 
or regulated? The difficulty of this objection will not be re- 
moved, by saying that they are cases of contracts, the con- 
struction of which forms one of the most important branches of 
the common law; for the question will still recur, where is the 
precedent for the exposition of each particular case? Besides, the 
same answer would equally apply to criminal cases; as it falls 
within the scope of common law, **to declare offences and define 
their punishment." If a man should be indicted for exposing 
himself naked in the streets of Baltimore on Sunday, when the 
various religious congregatiens were eagerly pressing forward to 
their respective temples, to offer up their adorations to their God 
and Saviour, would the court direct the prosecuting counsel to 
search for precedents before the date of the charter? And if they 
did, could they be found? No. And would the party accused 
therefore, be acquitted, or would not the court declare that such, 
an offence against public decency and good morals might and 
ought to be punished under the principles of the common law? 
See Sedley's case. 1 Siderfin and Orbin's case. (Sayer's Re- 
ports.) Can a precedent be produced before the colonization of 
an indictment charging a person with selling obscene prints? 
And would this act, the inevitable tendency of which is to corrupt 
moral sentiments, therefore be deemed innocent within the view 
of our penal code? It may safely be affirmed, that numerous of- 
fences have been punished in this state as common law offences, 
which were not adjudged to be such before the colonization. 

As our forefathers brought with them as their birthright, all' 
such parts of the common law as were applicable to their local 
circumstances, the question necessarily recurs, were conspiracies' 
to cheat and defraud indictable under the principles of that law? 
And if they were, is the doctrine applicable to their country? I 
.have endeavoured to prove the first proposition by a mass of 
adjudged cases; and surely there is nothing in the doctrine, which 



73 

could render its introduction improper. Its tendency is to 
strengthen the obligation of moral duties, to secure the enjoy- 
ment of property, and to punish acts of dangerous example and 
mischievous tendency, and if the question had been agitated in 
our courts of justice, before the revolution, can any lawyer doubt 
what would have been the decision? 

It has been urged in argument that the prosecuting attorney 
ought to have shown that the courts of Maryland, before our revo- 
lution, had adopted this part of the common law. That those courts 
had a right to declare what part of the common law should be ex- 
tended, and what not, and that they had a right also to expound the 
common law, are points which cannot be questioned: And if they 
had decided, that this branch of the law was not in force, such 
a decision would have been entitled to the highest respect and 
consideration. It does not appear from the researches that have 
been made, that such a question ever did occur; and the absence 
of adjudication on the subject, cannot be urged as an argument, 
unless we are prepared to say, that we are- only entitled to the 
benefit of such part of that law, as were by the Colonial courts 
adjudged to be in force. Such a position would be directly op- 
posed to the declaration of rights, which declares, that the inhab- 
itants of Maryland are entitled to the benefit of the common 
law of England. It must not be understood, that I mean to in- 
timate, that by this declaration, the whole body of the common 
law became the law of Maryland. Various exceptions were ne- 
cessarily implied. All those rules of the common law, which 
were inconsistent with the theory and spirit of our political in- 
stitutions ceased to have any operation, upon the dissolution of 
our connexion with the mother country; and is the power of pun- 
ishing confederacies to cheat and defraud inconsistent with the 
freedom of our political establishments? Do we not now as well 
as formerly, stand in need of all those legal restraints which are 
necessary to guard the social rights from violation? And must 
republican governments, whose foundations are laid in the prin- 
ciples of public virtue, abstain from punishing confederated acts 
of fraud under the idea that the punishment of such offences is 
inconsistent with the personal freedom of the citizen? 
10 



74 

The case of Griffith against Griffith's executors, decided in 
the general court of Maryland, and afterwards affirmed in the 
court of appeals, (reported in 4th Harris and M'Henry 122,) has 
been relied on by the defendant's counsel. 

The question which arose in that case, was this; was the wife 
entitled to one third part of the personal estate of her husband, 
who had bequeathed the whole of it away from her? 

Blackstone in the 2nd volume of his Commentaries 497, says, 
that from the reign of Henry the 2nd, to the reign of Charles the 
1st, inclusive, a man's personal estate was to be divided into three 
equal parts, of which one went to his heirs or lineal descendants, 
another to his wife, and the third was at his own disposal; the 
shares of the wife and children were called their reasonable 
parts. But, that the law had been altered by imperceptible degrees, 
and that the deceased might then by will, bequeath the whole of 
his goods and chatties, though it would not be perceived when 
first the alteration began. 

Sir Edward Coke, (2nd Inst. 33.) was of opinion, that this was 
never the general law, but only obtained in particular places by 
special custom. 

Chase, chief judge, in delivering the opinion of the court uses 
the following language. "I consider the acts of Assembly of 1704, 
1715 and 1719, as a clear and explicit recognition of the right of 
the wife to one third part of the personal estate, and I consider 
these successive acts of the Legislature and the uniform practice 
conformable thereto, as the best evidence of what was the com- 
mon law in the opinion and judgment of the legislature of Mary- 
land." ___ 

"Suppose it questionable and not well settled in England, the 
acts of the legislature and the practice here prove beyond a 
doubt, that it was the general opinion, the wife was entitled to a 
third part of the personal estate by the common law." 

It is difficult to conceive how the principle of this decision can^ 
apply to the subject now under consideration, as it was surely 
competent for the Colonial legislature to recognize a principle of 
the common law, or to change the same by positive enactment. 
If the defendant's counsel could have shown that conflicting opi- 
nions prevailed in England, at different periods, on the subject of 



75 

conspiracies, and that the acts of assembly of this state, reco^ 
nized the law, as declared by the one or the other decision, the 
authority of Griffith, and Griffith might have been appealed to 
with confidence. 

It has been objected, that the common law of England in rela- 
tion to conspiracies is harsh, as it does not require positive proof 
of the confederation, but permits it to be inferred from circum* 
stances. Is this feature of the law peculiar to conspiracies? 
May not various offences be proved to the satisfaction of a jury 
by circumstantial evidence? 

The chain of circumstances in this, as in all other cases, must 
be strong and unbroken, and if a man can be found guilty of the 
crime of murder on this species of evidence, there can be little 
reason to complain, that it should be deemed legal and sufficient 
in cases of conspiracy. The doctrine of conspiracies has been 
arraigned, on the ground that it punishes unexecuted intentions. 
But it is believed that the fallacy of this argument, consists in 
considering a confederacy as matter of intention onty. The of- 
fence is compounded both of fact and intention. The confedera- 
cy or agreement between the parties is a fact, and if the object 
of such an agreement is unlawful, the law considers the conspira- 
cy as a substantive offence. It has been said in argument, that 
as the courts of Maryland have not declared by their decisions 
conspiracies to defraud, to be indictable, it would be the height of 
injustice to punish the defendants for acts which they did not 
know to be criminal, at the time of committing them. But such 
an excuse is not admissible in a court of justice. If persons act 
unadvisedly, they must submit to the consequences — A different 
doctrine would shake to its foundation, the whole system of so- 
cial order. 

Having shown that conspiracies to cheat, were indictable of- 
fences at common law, I shall briefly enquire whether there is 
any thing in the constitution or laws of the United States, that 
can extract this misdemeanor from the grasp of the judiciary of 
the State. That the constitution of the United States did not 
abolish the common law of Maryland, is a proposition too clear 
for discussion, and it is equally clear, that the state judiciaries 
can exercise all the authorities and powers which they were 



76 

wont to do before the adoption of the constitution of the United 
States, except in those cases, where they are prohibited by it, or 
by the laws of congress made in pursuance thereof, and there will 
be no hesitation in admitting the principle, that where a jurisdic- 
tion is constitutionally conferred on the courts of the Union, and 
the exercise of a similar jurisdiction by the judiciaries of the 
state, would produce repugnancy or incompatibility, the prior 
jurisdiction of the state courts would be dislodged. Hence ad- 
miralty and maratime jurisdiction has been considered under 
the principles of the constitution, as having been exclusively con- 
ferred on the judiciary of the United States;(a) And it will also 
be conceded, that the judicial power of the United States, in all 
cases, may be made exclusive of state authority at the option of 
congress.(6) 

The question then occurs, will the exercise of the primitive 
jurisdiction of the state, in taking cognizance of the offence 
charged, come in collision with the judiciary power of the Unit- 
ed States. That Congress had the power to guard the interest 
of the bank against all frauds, by such penal sanctions as their 
wisdom might have suggested, cannot be doubted They might have 
declared, that a conspiracy to defraud the bank, should be an of- 
fence against the United States, and as such, it would necessa- 
rily have been congnizable in the federal courts, under the pro- 
visions of the judiciary act. But they have not deemed it fit, to 
put the offence within the pale of their penal code, and having 
omitted to do this, the defendants have committed no offence 
against the United States, as the courts of the Union have no 
common law jurisdiction in cases of crimej(c) for the legislative 
authority must first make an act a crime, affix a punishment to 
it, and declare the court that shall have jurisdiction over the of- 
fence.(d) 

Here, then, is no collision between the courts of the Union 
and the judiciary of the state; the former have no cognizance, 

(a) Martin vs. Hunter's lessee, 1 Wheaton 304, 33K, 

(b) ib. 

(c) United States against Hudson and Goodwin, 7 C ranch 32. United 
States against Cooledge and others, 1 Wheaton 415. 

(d) Idem. 



77 

because no offence has been committed against the United States; 
the latter, by entertaining jurisdiction, are in the exercise of 
their original common law powers. It cannot seriously be 
thought, that the potential authority of Congress, to make the 
acts charged in the indictment, an offence against the United 
States, can annihilate the previously vested jurisdiction of the 
state courts. A principle so repugnant to the sovereignty of the 
states, is no where to be found in the constitution, or the laws 
of the Union. Under such a construction, the judiciaries of the 
state, in the administration of criminal law, would be often em- 
barrassed by the most perplexing inquiries, relative to the extent 
of the powers of Congress, both express and incidental. The 
doctrine would be alarming in every point of view. Congress 
has power to pass laws, inflicting punishment on those who 
should wilfully destroy the banking houses by fire; but they do 
not think fit to exercise the power. Are the culprits therefore 
irresponsible to the jurisdiction of the state, within which the 
offence was committed? Various other cases might be adduced to 
show, the pernicious consequences of the doctrine, and its ten- 
dency to impair the security of the states. The exercise of state 
jurisdiction, produces no collision, so long as the authority of 
Congress to legislate on the subject, remains unexecuted: And, 
when it shall suit their wisdom to act, they can, by making "the 
judicial power of the United States exclusive of state authority," 
prevent all the inconveniencies which might arise from the con- 
flicting jurisdiction of distinct judiciaries. 

I am not disposed to question the power of Congress to pass 
an act, declaring that the offence charged, should be dispunisha- 
ble by the courts of the individual states; but still the jurisdic- 
tion of the state courts can only be annihilated by the exercise of 
this power by Congress; their silence on the subject can work no 
suspension or annihilation of state authority, unless we are pre- 
pared to admit the position, that all criminal violations of the 
rights of property, where the right has been created or conferred 
by acts of Congress, are emancipated from the cognizance of the 
state judiciaries. 

It is most true, "that no part of the criminal jurisdiction of the 
United States can be delegated to state tribunals;"(e) but it must 

(e) Martin vs. Hunter, 1 Wheaton. 



78 

be remembered, that the crime alledged against the defendants, 
is not an offence against the United States, as Congress has not 
declared it to be such. The act of Congress, by creating the 
bank, and authorizing the establishment of its branches, furnish- 
ed an occasion for doing the acts complained of; but those acts 
became criminal by the power of the common law alone. Hence, 
the jurisdiction of the state judiciary, with reference to this of- 
fence, is not derivative, but original. 

It has been urged in argument, by the defendant's counsel, 
that this court cannot entertain jurisdiction in a case of this kind, 
without subjecting the bank to the visitation of state authority, 
and that the establishment of such a principle, would be highly 
dangerous, as the state legislatures might, under the guise of 
protecting the interest of the bank, pass laws calculated to des- 
troy the institution, or to impede its operation. (/) That a pow- 
er in the state judiciaries to punish crimes against the state, 
committed to the prejudice of the bank and by its officers, cannot 
interfere with the security of the bank, is a proposition self- 
evident: And, if a state legislature should (be the pretence what 
it may) pass laws, the tendency of which was to impede or con- 
troul the operation of the bank; it would be the duty of the ju- 
dicial tribunals of the state, to declare such laws unconstitution- 
al.^) It is unnecessary to enquire, whether the judicial tribu- 
nals of the Union and the states may exercise a concurrent ju- 
risdiction in criminal cases, as the record does not present such 
a question. Upon investigation it will be seen, that Congress 
has recognized the assistant judicial power of the states, over of- 
fences created by the laws of Congress. Hence, the proviso in 
the act of the 24th February, ISOr, chapter 75, concerning for- 
geries on the Bank of the United States, which declares, that 
nothing in that act contained, shall be construed to deprive the 
courts of the individual states of jurisdiction, under the laws of 
the several states, over offences made punishable by that act; 
and a similar provision is to be found in the act of 21st April, 
1806, chap. 49, concerning the counterfeiters of the current coin 
of the Union. 

The courts of the several states, before the adoption of the 

(/) See M'Culloch against the State of Maryland, 4 Wheaton 316. 
(#•) See M'Culloch against the State of Maryland, 4 Wheaton 316. 



79 

Constitution of the United States, had cognizance of all cases 
of forgery committed within their limits; and those acts of Con- 
gress do not confer on the state judiciaries a new jurisdiction, 
for that would be a grant of power, not within the sphere of 
their authority, but they leave the primitive judicial powers of 
the states in full operation. (Ii) 

I am of opinion, that judgment ought to be entered on the de- 
murrer, for the state. 

(A) See Houston and Moore, 5 Wheaton 25, 26, 27, 28, 33» See Mai> 
tin vs. Hunter's lessee, 1 Wheaton 337. 



mwEwmw 



THE COURT OF APPEALS, 

Upon the question, whether a conspiracy to cheat or defraud a 
Bank, by the officers thereof, is an offence at Common Law, 
and punishable in Maryland? 



COURT OF APPEALS, DECEMBER TERM, 1821, 



The State us. Buchanan, et al. 

Error to Harford County Court. The indictment contains 
two counts: The first charges the defendants with an executed 
conspiracy, falsely, fraudulently and unlawfully, by wrongful 
and indirect means, to cheat, defraud, and impoverish the Pre' 
sidenty Directors and Company of the Bank of the United States; 
andthe second charges them with a conspiracy only, falsely, 
fraudulently and unlawfully, by wrongful and indirect means, to 
cheat, defraud, and impoverish the President, Directors and 
Company of the Bank of the United States. The defendants 
demurred to the indictment; first, on the ground that a state 
court has no jurisdiction, but that the matters alledged in the in- 
dictment are cognizable, (if at all,) in the courts of the United 
States; and secondly, that the facts charged do not amount to 
an indictable offence. The County Court, (Hanson and Ward, 
A* J.) ruled the demurrer good, and discharged the defendants. 
The present. writ of error was brought on the part of the state. 
U 



82 

The case was argued at the present term* before Chase, Ch. J. 
Buchanan, Earle, and Martin, J. by 

Murray, (District Attorney for the sixth judicial district, by 
substitution of the Assistant Attorney General, with the appro- 
bation of the court,) assisted by Wirt (Attorney General of the 
United States,) Harper and Mitchell, on the part of the state; 
and by 

Pinkney, Winder and Raymond, for the defendants in error. 

The opinion of the Court of Appeals, was delivered by 

Buchanan, J. This case was brought up by a writ of error di- 
rected to the judges of Harford County Court; and it has been 
strongly urged, that a writ of error will not lie at the instance of 
the state, in a criminal prosecution, and therefore that the writ 
in this case was improvidently sued out, and ought to be quash- 
ed. But it is said in 2 Hale's P. C. 247, the authority of which 
it is difficult to question, and indeed we require none higher, 
"that if A be indicted of murder, or other felony, and plead non 
cul, and a special verdict found, and the court do erroneously 
adjudge it to be no felony; yet so long as that judgment stands 
unreversed by writ of error, if the prisoner be indicted de novo, 
he may plead auterfoits acquit, and shall be discharged; but if 
the judgment be reversed, the party may be indicted de novo." 
And this is not a loose dictum, but it is laid down and repeated 
as text law; for in page 248 it is stated, that "in the case of the 
special verdict above, where an erroneous judgment of acquittal 
is given, yet it is conclusive to the king till it be reversed by er- 
ror." So in page 394, speaking of the ancient form of a judg- 
ment of acquittal, he says, "and if the entry were such, I do 
not think the prisoner could ever be arraigned again, notwith- 
standing the insufficiency of the indictment, till that judgment 
of acquittal were reversed." And again, in page 39;> of the same 
book, "and if in Vaux's case the judgment had been so entered 
(that is, quod eat inde quietus,) he could never again have been 
indicted for the same offence, notwithstanding the defect of the 
indictment, till that judgment reversed by writ of error." Hence 
it is manifest, that in the opinion of Lord Hale, the king might 
have a writ of error in a criminal case; since it would be ab- 
surd to say that a man who had obtained a judgment of acquit- 



tal for a defect in the indictment, or on a special verdict, could 
never again be indicted for the same offence, until that judgment 
was reversed by writ of error, if a writ of error would not lie* 
Fortified by such authority alone, in the absence of any legisla- 
tive provision in this state on the subject, we think we might 
safely say, without further inquiry, that the writ of error in this 
case was properly sued out. But instances are not wanting of 
writs of error being prosecuted by this state, in criminal casesj 
as in the State vs. Messersmith & Askew, the State vs. Forney, 
the State vs. Brown, and the State vs. Durham, in the court of 
oyer and terminer, &c. for Baltimore county. In each of those 
cases there was a demurrer to the indictment, and judgment on 
the demurrer for the defendant, in the court below. They were 
all taken to the late general court on writs of error by the state, 
Luther Martin, attorney general; and in each case the judgment 
was reversed. And there is no sufficient reason why the state 
should not be entitled to a writ of error in a criminal case. It is 
perhaps a right that should be seldom exercised, and never for 
the purpose of oppression, or without necessity; which can rare- 
ly, and it is supposed would never happen, and would not be to- 
lerated by public feeling. But as the state has no interest in the 
punishment of an offender, except for the purpose of general 
justice connected with the public welfare, no such abuse is to be 
apprehended; and as the power of revision is calculated to pro- 
duce a uniformity of decision, it is right and proper that the 
writ should lie for the state, in the same proportion as it is essen- 
tial to the due administration of justice, that the criminal law 
of the land should be certain and known; as well for the go- 
vernment of courts and information to the people, as for a guide 
to juries; who, though (by the laws and practice of the state) 
they have a right to judge both of the law and of the fact, in 
criminal prosecutions, should, and usually do, respect the opin- 
ions and advice of judges, on questions of law, and would seldom 
be found to put themselves in opposition to the decisions of the 
supreme judicial tribunal of the state. 

It has also been contended, that the return of the writ of er- 
ror in this case, supposing the writ to have been properly sued 
aut, is defective in this, that it is not under the hand and seal of 



84 

the chief judge, but that there is only a transcript of the record 
sent up, under the hand of the clerk and the seal of the court, 
with the writ of error annexed. But there is nothing in the ob- 
jection. By the fifth section of the act of 1713, ch. 4, "for re- 
gulating writs of error, and granting appeals from and to the 
courts of common law within this province," it is enacted, "that 
the method and rule of the prosecution of appeals and writs of 
error, shall for the future be in manner and form as is herein- 
after mentioned and expressed; that is to say, the party appeal- 
ing or suing out such writ of error as aforesaid, shall procure a 
transcript of the full proceedings of the said court, from whence 
such appeals shall be made, or against whose judgment the writ 
of error shall be brought as aforesaid, under the hand of the 
clerk of the said court and seal thereof, and shall cause the 
same to be transmitted to the court before whom such appeal or 
writ of error is or ought to be heard, tried and determined," &c. 
The preamble sets out that " forasmuch as the liberty of appeals 
and writs of error, from the judgment of the provincial and 
county courts of this province, is found to be of great use and 
benefit to the good of the people thereof;" and the second sec- 
tion provides under what circumstances alone, an appeal or writ 
of error shall operate as a supersedeas. The act is silent on the 
subject of the return of the writ of error, and only directs that 
the transcript of the proceedings shall be under the hand of the 
clerk and seal of the court, without dispensing with the signa- 
ture of the judge to the return of the writ; yet from that time 
to the present, the uniform practice under that act has been, for 
the clerk to send up the transcript of the proceedings under his 
hand only, and the seal of the^ court, together with the writ of 
error, as is done in this case, unaccompanied by the signature of 
the judge to the return of the writ. And if it should be admit- 
ted that it originated in error, it is now too late to shake a prac- 
tice so long settled. It may perhaps be doubted whether that act 
of the general assembly ought not to be understood as being ap- 
plicable to writs of error in civil causes only; and it has been 
urged, that no practice growing out of it in relation to such cases, 
can be brought in aid of a defective return in a criminal case. 
But whatever may have been the construction originally given 



85 

to it in ^hat particular, whether it was held to extend as well to 
criminal as to civil cases, or whether the returning of writs of 
error in the same manner in criminal as in civil cases, had its 
birth in the circumstance, that the mandate of the writ being the 
same in each, no good reason could be perceived why the man- 
ner of the return should be different; or from whatever other 
cause it may have arisen, the practice is found on examination 
to have been the same. That was the form of the return in the 
cases of the State vs. Messersmith & Askew; the State vs. For- 
ney; the State vs. Brown; and the State vs. Durham; the cases 
before alluded to for a different purpose. The same return was 
made in Burk's case, an indictment for a Rape, which was tried 
before me in Washington county court, in the year 1809, and 
was brought up by writ of error to this court, by the present at- 
torney general (Luther Martin,) who defended him with great 
zeul and ability in the court below, and it is presumed looked 
well into the subject. And so in every criminal case removed 
by writ of error, that is to be found among the records of the 
late general court, of which there are many. The return there- 
fore in this case has the sanction of the same authority on 
which a similar return in a civil case would rest. The author- 
ity of a settled practice for more than a hundred years, with 
which we are content without seeking to support it on any other; 
nor is it pretended that such a return would be insufficient in a 
civil case; and there is no sensible difference between a criminal 
and a civil case in that respect, or any sound reason why the re- 
turn should not.be the same in one as in the other. But there is 
no uniform rule for the return of writs of error; and if the object 
of the writ, which is that a true and perfect transcript of the pro- 
ceedings shall be brought up, is substantially gratified, it is all 
that courts do or need look to. If a writ of error be brought 
in parliament on a judgment in the Court of King's Bench, 
the chief justice goes in person to the House of Lords, with 
the record itself, and a transcript, which is examined and 
left there, and then the record is brought back again into the 
King's Bench. 2 Tidd's Practice, 1092. In the court of common 
pleas the practice is different. There on a writ of error returna- 
ble in the King's Bench, it is usual for the chief justice to sign 



86 

the retur n. Ibid (note.) But that is not absolutely necessary, 
for the court of King's Bench will not stay the proceedings for 
want of his signature; and though the writ of error requires the 
record to be sent sub sigillo, yet this is never practised. 2 
Strange, 1063. And if the seal can be dispensed with, why may 
not the signature also? Since the omission of either, is equally a 
departure from the mandate of the writ, and both are dispensed 
with in the case of a writ of error returnable from the King's 
Bench in the House of Lords. Besides, in England, a writ of 
error must be directed to him, who has the custody of the record 
wherein any judgment is given; and for that reason it is, that a 
writ of error brought on a judgment in the court of common 
pleas, for instance, is always directed to the chief justice of that 
court, who has the custody of the record. But in this state, 
though the form of the writ as used in England, and introduced 
here at a very early period, is still retained, yet the clerk of the 
court in which the judgment is rendered, has a much greater con- 
trol over the record than in England, and hence probably arose 
the practice, that appears to have prevailed here at least from the 
year 1713, for the clerk to send up a full transcript of the pro- 
ceedings under his hand only, and the seal of the court, with the 
writ of error annexed, which sufficiently gratifies the object of 
the writ; as much so as the practice in the Court of King's Bench 
on a writ of error brought in parliament^and affords as much 
certainty of a full and perfect transcript of the proceedings, as 
a return of the writ under the signature of the chief justice — the 
course usually pursued in the Court of Common Pleas, in relation 
to writs of error returnable in the King's Bench. 

These preliminary questions being thus disposed of, the next 
presented for consideration, is whether the facts stated in the in- 
dictment, amount to an offence punishable by the laws of Mary- 
land. This is denied on the part of the defendants in error, and 
much reliance is placed on the statute 33 Edward I. de conspira* 
toribus, on the supposition that the offence of conspiracy, was 
originally created by that statute; or if it was a common law 
offence, that the statute either contained a definiton of all the 
conspiracies that were before indictable at common law, or an- 
nulled the common law, and rendered dispunishable all conspira- 



87 

cies but such as it defines. And if either position be correct 
there is an end to this prosecution, since the matter charged in 
the indictment is clearly not embraced by the statute; and if it 
was, the statute being considered as not in force here, the case 
would not be helped; and there would be no law in this state, for 
the punishment of conspiracies of any description, there being 
no legislative provision on the subject. But neither branch of 
the proposition, will on examination be found to be true. The 
statute is in these words: "Conspirators be they that do confeder 
or bind themselves by oath, covenant, or other alliance, that eve- 
ry of them shall aid and bear the other falsely ami maliciously to 
indict or cause to indict, or falsely to move or maintain pleas; 
and also such as cause children within age to appeal men of 
felony, whereby they are imprisoned and sore grieved; and such 
as retain men in the country with liveries or fees to maintain 
their malicious enterprises; and this extendeth as well to the 
takers, as to the givers. And stewards and bailiffs of great lords, 
which by their seignory, office, or power, undertake to bear or 
maintain quarrels, pleas, or debates, that concern other parties 
than such as touch the estate of their lords or themselves." 
Without looking beyond the statute itself, there may be found 
sufficient evidence on the face of it, to show that conspiracies 
were known to the law before. "Conspirators be they," &c. Now 
why should they have been declared to be conspirators, who 
should confederate for any of the purposes mentioned in the 
statute, if they were, not liable to punishment for such combina- 
tions? And if they were, it was for the conspiracy that they were 
so liable to be punished; as without the offence of conspiracy, 
there could have been no punishable conspirators. The statute 
does not prohibit conspiracies or combinations of any kind, it 
does not declare combinations or conspiracies of any description 
to be unlawful, nor does it impose a penalty, or inflict any pun- 
ishment upon conspirators. And if combinations for any of the 
purposes mentioned in the statute, were punishable at all, it could 
only have been on the ground, that both the oft'ence of conspiracy 
C eo nomine^ and the punishment, were known to the law anter- 
ior to the enactment of the statute, and that the declaring those 
to be conspirators, who should be engaged in certain combina- 



88 

tions, subjected them to the law of conspiracy as it then existed. 
And it has never been pretended, that the combinations enumera- 
ted in the statute were not indictable conspiracies. The statute 
therefore, which had for its object the prevention of the combi- 
nations it enumerates, carries with it internal evidence, that con- 
spiracy was an indictable offence before. But the question, 
•whether conspiracies were indictable or not at common law, 
anterior to the statute 33 Edward I. does not depend alone upon 
the construction of that statute. In 5 Coke's Institutes 143, and 
1 Hawk. P. C. 193, ch. 72, sec. 9, it is said, that the villenons 
judgment is given by the common law, and not by any statute, 
against those convicted of a conspiracy. Now this judgment, 
called the villenous judgment, which was known only to the 
common law, could never have been given, unless conspiracy 
was an offence punishable at common law. In the 20th year of 
the reign of Edward the 1st, a civil remedy was provided against 
conspirators, &c. by the writ of conspiracy; and the statute 28th 
Edward I, ch. 10, entitled, "The remedy against conspirators, 
false informers and embracers of juries/' makes this further pro- 
vision: "In right of conspirators, false informers, and evil pro- 
curers of dozens, assises and juries, the king hath provided reme- 
dy for the plaintiffs by writ out of the chancery; notwithstand- 
ing, he willeth that his justices of the one bench and of the other, 
and justices assigned to take assises, when they come into the 
country to do their office, shall upon every plaint made unto 
them, award inquests thereupon without writ, and shall do right 
unto the plaintiffs without delay." It must be the provision in 
the 20th of Edward I, for the writ of conspiracy, to which the 
first clause of this statute has reference, as there does not appear 
to be any other, and which according to 2d Institutes 562, was 
but in affirmance of the common law; and these provisions for 
private remedies against conspirators, clearly demonstrate the 
existence of the offence of conspiracy. It is equally clear, that 
the statute does not embrace all the ground covered by the com- 
mon law. Who doubts, or was it ever questioned, that a con- 
spiracy to commit any felony is an indictable offence; as to rob or 
murder, to commit a rape, burglary or arson, &c. or a misdemean- 
or, as to cheat by false public tokens, &c. Indeed this has been 



89 

conceded throughout the whole of the argument in this case, and 
the ground mainly'relied upon, on the part of the defendants in 
error is, that the object of the conspiracy charged in the indict- 
ment, is not of itself an indictable offence. Yet such cases of 
conspiracy are not made punishable by any statute, and are only 
indictable at common law; which could not be, if the statute 33d 
Edward I, either furnished a definition of all the conspiracies 
indictable at common law, or restricted and abridged the latter, 
by rendering dispunishable all such as it does not define. This 
statute is not prohibitory, nor is the existence of other punisha- 
ble conspiracies than those which it enumerates at all repugnant 
to, or inconsistent with any of its provisions; and according to 
any known rule of construction, the common law of conspiracy 
such as it was before, may well stand together with the statute; 
for surely, the merely declaring one act to be an offence, which 
act as well as others, was so before in contemplation of law, can- 
not render those others dispunishable: nor will one act, which in 
law amounts to a particular offence, cease to be so, because ano- 
ther act is merely declared by statute (without any negative 
words) to amount to the same offence. The statute therefore, 
must be considered either as declaratory of the common law on- 
ly, so far as it goes, for the purpose of removing doubts and dif- 
ficulties which may have existed in relation to the conspiracies 
it enumerates, by giving to them a particular and definite des- 
cription; or as superadding them to other classes of conspiracy 
already known to the law, leaving the common law, in posses- 
sion of all the ground it occupied beyond the provisions of the 
statute. And so it has been uniformly understood in England, 
from the earliest down to the latest decision that is to be found 
on the subject; otherwise the judges could not have sustained a 
great proportion of the prosecutions for conspiracy, with which 
the books are crowded; in some of which, the objection, that the 
matter charged was not within the statute 33d Edward the 1st, 
was made and overruled, as will be hereafter shown. In the 
Book of Assizes, 27th Edward the 3d, ch. 44, it is said, that 
" inquiry shall be made concerning conspirators and confede- 
rates, who bind themselves bv oath, covenant or other agree- 
ment, that each will support the enterprises of the other, whether 
12 



90 

true or false;" and in the same book we find this notice of a cri- 
minal prosecution: " and note that two were indicted for a con- 
federacy, each of them to maintain the other, whether the mat- 
ter was true or false; and notwithstanding, that nothing was al- 
ledged to have been actually done, the parties were put to an- 
swer, because it was a thing forbidden by law." If this falls 
within either of the provisions of the statute 33 Edward I, it can 
only be that which relates to the moving and maintaining pleas, 
and that does not embrace it; for if the indictment had been un- 
der the statute, for a confederacy "falsely to move and main- 
tain pleas," which can only have reference to proceedings in 
courts of justice, it is very clear that the parties must have been 
acquitted, as the conspiracy was not to do that specific act; 
otherwise they might have been punished for what they did not 
contemplate, since nothing being alledged to have been done, 
non constat, that they had any intention, to move and maintain 
pleas within the purview of the statute; and the intention enters 
into the essence of every offence. The indictment however, was 
not under the statute, for either of the specific acts mentioned in 
it, but at common law for the conspiracy, which was considered 
per se a substantive offence, no act in furtherance of its being 
alleged, and this after, and notwithstanding the statute. The 
position, that '*a confederacy each to maintain the other, whe- 
ther the matter be true or false," is a common law offence, is dis- 
tinctly adopted in 1 Hawk. P.C. 190, ch. 72, and 9 Coke's Rep. 
(The Poulterers' case) 56, and the principle of the case noted in 
the Book of Assizes, to wit, that conspiracies are punishable at 
common law, though nothing be put in execution, is fully re- 
cognized in the Poulterers' case, in which that book is referred 
to; and this further principle also laid down, that the law pun- 
ishes the conspiracy, "to the end to prevent the unlawful act;" 
and in the same case, speaking of another, article 19, also in the 
Book of Assizes 138, relative to combinations among mer- 
chants to regulate the price of wool, it is said, "and in these 
cases, the conspiracy or confederacy (not the false conspiracy or 
confederacy) is punishable, although the conspiracy or confede- 
racy be not executed." Hence it is manifest, that the ''nota'' 
at the end of the case, which seems to be relied on to show, that 



91 

both malice and falsehood are indispensable ingredients of a 
punishable conspiracy, and must be united in the same case, was 
not intended by Lord Coke as applicable to all confederacies, but 
to such false conspiracies only, as are of the character of those 
of which he had treated immediately preceding the nota; for he 
does not speak of the case of a conspiracy between merchants 
to fix the price of wool, as a false conspiracy, nor does either 
falsehood or malice, necessarily enter into such a combination. 
And these combinations among merchants, (which are not within 
the statute SSd Edward the 1st,) were, and remained punisha- 
ble at common law, and were not first made so by the statute 
staple 27th Edward the 3d, ch. 9, as has been supposed in argu* 
ment. That statute does indeed prohibit the exportation of wool 
under a very severe penalty, but neither creates, nor provides a 
punishment for the offence of merchants, of combining to fix a 
price beyond which they would not go. All that is said in rela- 
tion to the purchasing of that article is, that "all merchants, as 
well subjects as foreigners, may purchase woolfolk, &c. through- 
out the whole of our kingdom and territories, without covin or 
collusion to lower the price of the said merchandizes, so never- 
theless as they bring them to the staple;" from which it would 
seem that all covin and collusion to lower the price of merchan- 
dize was before unlawful, and that the statute meant to leave 
the law as it was. In the Poulterers' case, it was clearly consi- 
dered as an offence at common law; and in 4 Blk. Com. 154, the 
exportation of wool, which, as has been before observed, was 
prohibited by the statute staple, under a very heavy penalty, is 
said to have been forbidden at common law, but more particular- 
ly by that statute; and if that, which it was the principal object 
of that statute to prevent and to punish, was before, an offence at 
common law, it may readily be supposed, that no new offence 
was intended to be created; but that a conspiracy to fix the price 
of wool, was an offence at common law. Moreover, the words 
of the statute are "without covin or collusion to lower the price," 
&c. and a combination to "fix a price, beyond which they would 
not go," might not necessarily be to " lower" the price. On an 
information against Breerton, Townsend and others, Noy's Rep, 
!03 $ for the suppression of a will, to the prejudice of Egerton, 



92 

the relator, whose wife was thereby disinherited all the defend- 
ants but one, were convicted and fined. This was a case of 
fraud effected by a confederacy, and the injury was to an indivi- 
dual; the suppression of a will by one was not an indictable of- 
fence, though a fraud highly injurious to the party affected by it. 
It was the confederacy alone which rendered it criminal, and 
therefore, the information was against the offenders conjointly. 
In Timber Jy and Childe, Siderfin 68, the indictment was for a 
conspiracy to charge one with being the father of a bastard child, 
with intent to extort money from him; and on motion to quash 
the indictment, it was held by the court to be good. In Child 
vs. North and Timberly, 1 Keble 203, the indictment was for a 
conspiracy to deprive the prosecutor of his fame, and to extort 
money from him, by falsely charging him with being the father 
of a bastard child. There was a motion to quash the indictment, 
because the conspiracy as laid, was to charge the prosecutor with 
matter that the court had no cognizance of; which was overrul- 
ed, on the ground that it might be a loss to the prosecutor; and 
it was held that the conspiracy was punishable, though the court 
had no cognizance of the matter of it. And in the same case in 
1 Keble 254, it was moved after verdict in arrest of judgment, 
that the indictment only charged the parties with a conspiracy to 
deprive the prosecutor of his fame, and to extort money from 
him, and not with a conspiracy to charge him before any tribu- 
nal having cognizance of the matter of bastardy. But the mo- 
tion was overruled, and judgment rendered for the king, on the 
two grounds distinctly taken, that it was a conspiracy for lucre 
and gain, to charge and disgrace a man with having a bastard, 
and that the crime was the conspiracy, which whether it was to 
defame or disgrace a man, or to charge him with heresy, was 
punishable at common law. In the Queen vs. Armstrong, Har- 
rison and others, 1 Ventris 304, the defendants were indicted 
for conspiracy to charge (or burden) one with the keeping of a 
bastard child, and thereby to bring him to disgrace. After ver- 
dict there was a motion in arrest of judgment, on the ground 
that it did not appear, that the party was actually burdened with 
the keeping of a child; but on the contrary that it was alledged 
to be only a pretended child; and also, that the party was not 



93 

stated to have been brought before a justice of the peace on that 
account; but only that the defendants went and affirmed it to 
himself, intending to obtain money from him, that it might be no 
further disclosed; and that a bare unexecuted conspiracy was 
not a subject of indictment. The objection was overruled and 
the parties were punished by fine. The principle of this case 
cannot well be misunderstood. It was a conspiracy to extort mo- 
ney from an individual, by going to him, and affirming that he 
was the father of a bastard child, with a view of inducing him to 
pay them to say no more about it. And it was decided on the 
ground (expressly taken by the court) that it was a contrivance 
by conspiracy, to defame the person, and cheat him of his money, 
which was an indictable crime of a very heinous nature. In the 
Queen vs. Best and others, 2 Ld. Raym 1 1 67, the indictment was 
for a conspiracy, falsely to charge the pr< secutor with being the 
father of a bastard child, with which one Elizabeth Carter was 
pretended to be ensient, in order to defraud him of his money, 
and destroy his reputation. On demurrer it was among other 
things objected to the indictment, that it was not alleged, 
that the child was likely to become chargeable to the parish, 
and that it did not appear, that the prosecutor was by the ac- 
cusation put in danger of being subjected to any penalty; but 
that it amounted only to a charge that the defendants con- 
spired to tell the prosecutor, that he was the father of the child 
the woman was big with, and that a bare conspiracy, to do an ill 
act, was not indictable. But the demurrer was overruled, on 
the principle broadly laid down by the court, that the defendants 
being charged at least with a conspiracy, to charge the prosecu- 
tor with fornication, though that was only a spiritual defamation, 
yet the conspiracy was the gist of indictment, and was a tempo- 
ral offence and punishable as such. The King vs. Kinnersly and 
Moore, 1 Strange 193, was a case of conspiracy to extort money 
from Lord Sunderland, by charging him with an attempt to com- 
mit sodomy with one of the defendants. It was not charged as 
a conspiracy to accuse him in a course of justice, but only in 
pais. The object was to extort money, by means of a verbal 
slander, for which the party injured had his civil remedy, and 
the mere verbal slander by one only, would not have been in- 



94 

dictable. And The King vs. Martham Byran, 2 Strange, 866 
the court in speaking with reference to The King vs. Armstrong 
and Harrison, say, "there the conspiracy was the crime; and an 
indictment will lie for that, though it be to do a lawful act." In 
this class of conspiracies, the meditated end was not accomplish- 
ed in either of the cases. The object in each, was to defame 
and extort money from an individual; and the indirect or wrong- 
ful means by which that object was intended to be effected was 
verbal slander — a combination to do that, which if actually done 
by one alone, would not be the subject of an indictment; for if 
one verbally defames another, or extorts money from him, not 
under colour of office, it is not an indictable offence. The con- 
spiracy therefore for a corrupt purpose, was the offence for which 
they were punished; and there is no pretence for supposing, as 
has been urged in argument, that the prosecutions were sustained 
on the ground, that the conspirators contemplated an abuse of 
judicial authority, by falsely accusing or causing the parties to 
be accused, of having bastard children, before justices of the 
peace having cognizance of such matters. A conspiracy of that 
character, would there is no doubt, have been an indictable of- 
fence, having for its object, the subjecting the party accused, to 
the provisions of the statutes in relation to bastardy. But 
that is not the nature of the conspiracy charged in either of the 
cases referred to. In every case the defendants were indicted 
for a conspiracy to defame and extort money from the prosecu- 
tor, by charging him with being the farther of a bastard child, 
not before justices of the peace, but the charge is laid as having 
been made in pais; and in The King vs. Timberly and North, 
one of the objections to the indictment was, that it did not lay 
the conspiracy to be, to charge the procecutor before any that had 
jurisdiction of the matter; and in the Queen vs. Armstrong, Har- 
rison, and others, the same objection was raised, and also, that the 
defendants only went and affirmed it to the prosecutor himself; 
and so in the Queen vs. Best, and others, which with the exception 
also taken in the King vs. Timberly and North, that it was not 
within the statute 33 Edward I. was disregarded by the judges. 
"Every indictment must contain a certain description of the 
crime of which the defendant is accused, and a statement of the 



95 

facts by which it is constituted, so as to identify the accusation, 
lest the grand jury should find a bill for an offence, and the party 
be put upon his trial for another, without any authority." 1 
Chitty's Criminal Law 169. And, "the charge must be sufficient- 
ly explicit to explain itself, for no latitude of intention can be 
allowed, to include any thing more than is expressed," — Ibid 
172, 2 Burr. 1127. And t\\£ accused is put upon his trial only 
for that with which he has charged, and against which alone, he 
is called on to defend himself. The prosecutions therefore in 
the cases referred to, could not have been supported on the 
ground that the defendants contemplated an abuse of jud'^iai 
power, by falsely accusing the prosecutors before justices of the 
peace; for no matter what they contemplated, that was not what 
they were charged with, and if they were only punishable on that 
ground, as the judges could not by intendment, have supplied 
what was not expressed, the indictment must have been quashed, 
or the judgments arrested for want of sufficient matter in law 
(which was brought fully under the consideration of the courts,) 
otherwise it would have been, to punish the defendants for 
what they were not convicted for they could only have been 
convicted of what was alledged against them in the indictments. 
And thus the singular picture would have been exhibited in 
criminal jurisprudence, of men convicted of what was no of- 
fence in law, and punished for what they were neither con- 
victed nor accused of, and for any thing appearing might never 
have contemplated; but such a stain is not to be found on any 
page of juridical history. It is not possible to suppose that in 
either of the cases, the judges went on the ground, that the de- 
fendants had accused, or meditated the accusation of the prose- 
cutor before those who had jurisdiction of the matter; on the 
contrary the idea is expressly negatived by the proceedings 
themselves. The absence of the allegation was urged in each 
case, as an objection to the indictment, and the court decided, not 
that it might be inferred from what was alleged, but that it was 
not necessary, and that the conspiracy alone to defame and extort 
money from an indvidual, without any abuse, or meditated abuse 
of judicial power, was per se an indictable offence at com- 
mon law. If they had not stated the grounds on which they 
acted, then indeed any legal principle that could be extracted 



96 

from the cases, might, in support of the decisions, properly be 
assumed as the ground on which they were given. But the ground 
that is here attempted to be assumed, as that on which the con- 
spirators were punishable, is not only different from that, on 
which the judges expressly place their decisions, but is an illegal 
ground, and one on which the indictments could not have been 
supported. Illegal, not because a conspiracy to accuse a man of 
being the father of a bastard child before those who had cogni- 
zance of such matters, was not an indictable offence, but because 
it was, what was not charged in the indictments, and could not 
legally be inferred from what was expressed. To say therefore, 
that those conspiracies were indictable, or that the prosecutions 
were sustained only on the ground, that the conspirators meditat- 
ed the abuse of judicial power, by falsely accusing the prosecut- 
ors before a tribunal having cognizance of such offence, would 
be to overturn altogether the authority of the cases, which has 
not been attempted; on the contrary their authority seems to be 
admitted, and their application only to the case under considera- 
tion is resisted, on the hypothesis, that they were decided on 
grounds not appearing in the indictments, and entirely different 
from those on which the judges professed to act. But the fallacy 
of the argument becomes obvious, when it is seen, that without a 
violation of the principle, that "every indictment must contain a 
certain description of the crime of which the defendant is accus- 
ed, and a statement of the facts, by which it is constituted," the 
indictments in those cases, could not have been sustained upon 
the grounds on which the decisions are attempted to be placed 
Those cases therefore must stand or fall on the grounds upon 
which they are placed by the judges, who decided them, not the 
reasoning of the judges, but the principles on which their decis- 
ions are made to rest. The King vs. Parsons, and others, I Blk. 
Rep. 392, was a conspiracy to take away the character of an in- 
dividual, and accuse him of murder, by means of a mere phan- 
tom, which could have no reality — pretended communications 
with a ghost; and the actual fact of conspiring, was left to the 
jury to be collected from all the circumstances. The only object 
of the conspiracy in that case, was to injure the man's reputation. 
And in the King vs. Rispal, 1 Blk. Rep. 368, 3 Burr. 1320, 



9? 

which was a prosecution for a conspiracy to extort money from 
an individual, by charging him generally with having taking a 
quantity of human hair out of a bag; on the objection being rais- 
ed to the indictment, that the defendants were not charged with 
having conspired to fix any crime on the party, but only generally 
with taking the hair, which might be lawful, it was said by Lord 
Mansfield, the other judges concurring, "the crime laid, is an 
unlawful conspiracy; this, whether it be to charge a man with 
criminal acts, or such only as may affect his reputation, is fully 
sufficient" That case if received as authority, settles this prin- 
ciple, that a conspiracy to defraud another by verbal scandal is 
equally indictable, whether it be to charge the party with a crime, 
or only to injure his standing in society, and is a full answer to 
the argument that the principle of the cases last referred to, is 
not applicable to this, because they are of conspiracies to fix 
punishable offences upon the parties. In the King vs. Skirret, 
and others, 1 Siderfin 312, the defendants were prosecuted for 
reading a release to an illiterate man, in other words than those 
in which it was written, by which he was induced to sign it. It 
does not appear by the short report of the case, what the form of 
the indictment was, but as it was against them conjointly, they 
must have been charged either with conspiracy or combination. 
The fraud was practised upon an individual, and if it had been 
perpetrated by one only, would not have been an indictable cheat. 
It was the combination therefore alone whieh made it crimi- 
nal, and that too is a case not within the statute 33 Edward I. 
In the Queen vs. Mackarty ami Fordenbourgh, 2 Ld. Raym. 
1 179. 2 East's C. L 823, the defendants were conjointly indict- 
ed, for falsely and deceitfully bargaining and exchanging with 
another, a quantity of pretended wine, alledging it to be good 
new Lisbon wine, for a certain quantity of hats, which were ex- 
changed and delivered by the party practised upon, on the faith 
of their false representations, when in fact the pretended Lisbon 
wine, was not Lisbon wine. The indictment in this case was 
not under the statute 33 Henry 8th, ch. 1, which prohibits cheat- 
ing by "means of false privy tokens, and counterfeit letters in 
other men's names;" nor the statute 30 Geo. II, ch. 24, which 
provides, under heavy penalties, against cheating by "false pre- 
13 



98 

tences," (and which was passed long afterwards,) but was for a 
cheat at common law, and though it did not charge the defend- 
ants with a conspiracy eo nomine, yet it charged that they toge- 
ther, did the act imputed to them; and as there were no false 
public tokens, which were necessary at common law, to consti- 
tute a cheat effected by one an indictable offence, it was the com- 
bination alone on which the prosecution could have been sus- 
tained. A cheat perpetrated by the use of false public tokens, 
such as false weights and measures^ is an indictable crime at 
common law, only because they are means calculated to deceive, 
and are such, as common care and prudence are not sufficient to 
guard against; and so, as ordinary care and prudence are no safe- 
guard against the machinations of conspirators, cheats effected 
by conspiracy are punishable at common law, for "pari ratione, 
eadem est lex." And in the King vs. Wheatly, 2 Burr. 1127, 
cheats effected by conspiracy, are expressly placed on the same 
footing with cheats effected by false weights and measures. In 
the Queen vs. Orbell, 6 Mod. 42, the indictment was for a com- 
bination to cheat one J. S. of his money, by getting him to bet a 
certain sum on a foot race, and prevailing on the party to run 
booty; and the court sustained the indictment on the ground as 
they said, that li being a cheat, though it was private in the par- 
ticular, yet it was public in its consequence." That was a case 
emphatically of individual injury, and as little connected with 
any public concernment, as any private transaction could well 
be, and it was the combination alone on which the prosecution 
rested; for such a cheat practised by one, was clearly not an in- 
dictable offence. In the King vs. Edwards and others, 8 Mod. 
320, the parties were indicted for giving money to a man, to 
marry a poor helpless woman who was an inhabitant of the pa- 
rish of B. and incapable of marriage, on purpose to gain a set- 
tlement for her in the parish of A. where the man was settled. 
In that case there was a motion to quash the indictment, on the 
ground that it was not unlawful to marry a woman and give her 
a portion. But the object of the conspiracy, being to impose a 
pauper on a parish to which she did not belong, it was held by 
the court to be an indictable offence at common law, for that a 
bare conspiracy to do a lawful act to an unlawful end, was a 



99 

crime, though no act should be done in consequence thereof. 
The conspirators certainly meditated a fraud on the inhabitants 
of a particular parish, by burdening them with the support of a 
pauper belonging to a different parish, and so far perhaps it may 
be viewed as a case of contemplated private fraud as the inhab- 
itants of a parish are not the community at large. But whether 
the principle laid down by the court, was on the point of medit- 
ated individual injury or violation of public police, does not 
appear from the report of the case. In 3 Chitty on Criminal 
Law, it is treated as a conspiracy to violate public police; but 
the principle equally applies to both. In the Kin^r vs. Cope and 
others, 1 Strange 144, the prosecution was for a conspiracy to 
ruin the trade of the prosecutor, who was a cardmaker to the 
king, by bribing his apprentices to put grease into the paste, by 
which the cards were spoiled. The putting grease into the paste, 
and thereby spoiling the cards, if done by one, would have been 
no crime in law, but a private injury, for which the party would 
have been left to his civil remedy; and it was the conspiracy 
alone which constituted the offence. And in the King vs. Ec- 
cles, 1 Leach's Crown Gases, 274, the indictment was for a 
conspiracy, by wrongful and indirect means to impoverish one 
Booth, a tailor, and to deprive and hinder him from following 
and exercising his trade. In the first count in the indictment, 
the object of the conspirators was alledged to have been accom- 
plished, and in the second count the conspiracy only, was charg- 
ed. It was not denied that the conspiracy was an indictable of- 
fence, and the only objection on the part of the defendant was, 
that the acts done to impoverish Booth, ought to have been set 
out in the indictment. But it was decided by the whole court, 
that it was sufficient to allege the conspiracy and the object of 
it, the illegal combination being the gist of the offence; and that 
it was not necessary to state the means,, by which the intended 
mischief was effected; for that the offence did not consist in do- 
ing the acts by which the end was accomplished, (for they might 
be perfectly indifferent,) but in the conspiring with a view to ef- 
fect the intended mischief by any means; and by Buller, jus- 
tice, that "the means were only matters of evidence to prov 
the charge, and not the. crime itself." It has been contended 



ioo 

that these last cases were conspiracies to injure public trade; the 
distinguished judges before whom they were tried have not said 
so, nor could they have so considered them. They were not so 
laid in the indictments, but were distinctly cases in which the 
meditated injuries were levelled against particular individuals, 
unconnected with any matter of public concernment, and do not 
fall within the principles of any of the enumerated offences 
against public trade, which are offences committed by traders or 
dealers themselves, such as cheating, forestalling, regrating, &c, 
So in the King vs. Leigh and others, (Macklin's case,) 2 Mack- 
lin's Life 217, in which it was held, that an indictment would 
lie for a conspiracy to impoverish an actor, by driving or hissing 
him off the stage: and in Clifford vs. Brandon, 2 Campb. 358, it 
was said by Sir James Mansfield, that "though the audience had a 
right to express by applause or hisses their sensations at the mo- 
ment, yet if a body of men were to go to the theatre, with a set- 
tled intention of hissing an actor, or even of damning a piece* 
there could be no doubt that such a deliberate preconcerted 
scheme would amount to a conspiracy, and that the persons con- 
cerned in it might be brought to punishment." There the precon- 
certed scheme alone, the unexecuted conspiracy was held to be in- 
dictable; but if put into execution, according to circumstances, 
it would be a riot. In the King vs. Robinson and Taylor, 1 
Leach's Crown Cases 37, the defendants were indicted for a con- 
spiracy to raise a specious title in Mary Robinson to the estate of 
Richard Holland, by marrying Taylor, under the assumed name 
of Richard Holland! The only evidence in the case was of the 
marriage, and that she lived with Holland as a kind of servant. 
It was distinctly admitted, that a conspiracy to do an injury to 
the person or estate of another was an indictable offence, and so 
held by the court, Willes, Foster and Reynolds, presiding; and 
it was also ruled, there being no positive proof of an intention to 
injure Holland, that it was not necessary to prove any direct or 
immediate injury, or even to show any specific overt act of con- 
spiracy, but that it was the province of the jury to collect from 
all the circumstances of the case, whether there was not an inten- 
tion or design in the parties to do a future injury to Holland. And 
that case would seem to cover all the ground necessary to 



101 

support this prosecution. The conspiracy was levelled at the 
property or estate of another, and the object was to defraud 
an individual, but the act by which the fraud was intended to 
be accomplished, (a marriage under an assumed name) was 
not in itself unlawful. It has been ingeniously argued here, 
but not ventured on by those who conducted the defence of 
Robinson and Taylor, that they meditated a perversion of 
the course of justice, as her right could only have been estab- 
lished by judicial proceedings. It was not so charged in the 
indictment, and without it, the prosecution must have failed, 
if it had been deemed at all necessary to constitute the offence; 
for "no latitude of intention can be allowed to include any 
thing more than is expressed in an indictment," as has been 
before observed on the authority of Lord Mansfield, in the case 
of the King vs. Wheatly, 2 Burr. 1127, and 1 Chitty's Criminal 
Law, 127. In the King vs. Lara, 6 T. R. 565, it was admitted by 
counsel in argument, that a fraud upon an individual, by conspi- 
racy was indictable, and the doctrine laid down by the judges in 
the King vs. Wheatly, was fully recognized and adopted by Lord 
Kenyon; that is, that a cheat effected by conspiracy, was an in- 
dictable offence. The case of the King vs. Berenger, 3 Maule 
and Selwyn, 68, as it is understood by the court, is a very strong 
one. The indictment was for a conspiracy by false rumours to 
raise the price of the public government funds, with intent to 
injure such of the King's subjects as should purchase on a parti- 
cular day. It was broadly admitted in argument, that if the in- 
dictment had stated, "that the defendants conspired to raise the 
price of the funds in order to cheat or prejudice particular indi- 
viduals by name, or to benefit themselves at their expense, or 
that the public were concerned in the purchases of that day, and 
the defendants conspired, &c. to the prejudice of the public, it 
would have exhibited a complete offence." But it was contend- 
ed, that the allegation, that it was with intent to injure "such of 
the King's subjects as should purchase on that day," was too 
general, and for that reason, the indictment was objected to. 
But the objection was overruled by the court, not on the ground, 
that to constitute an indictable conspiracy, it should be levelled 
either at the public in its aggregate capacity, or at a class Qvpor- 



102 

tion of the subjects, as distinguished from an individual; for it 
was treated throughout as perfectly clear, that if it had been laid 
with intent to prejudice or defraud either the public, or an indi- 
vidual or individuals by name, it would have been good; and the 
only difficulty on that part of the case was, whether, being laid 
with intent to injure those who might become purchasers, and not 
either an individual by name, or the public in its aggregate ca- 
pacity, the generality of the charge did not vitiate the indict- 
ment. But they sustained the indictment ex necessitate rei, on 
the ground, that as it was impossible the defendants could have 
known who would be the purchasers on that day, the charge 
could not have been more specific. And though it was conceded, 
that to raise or lower the price of the public funds, was not per 
se a crime, yet it was held to be an offence, for a number of per- 
sons to conspire to raise them by false rumours;and that the crime 
was not in raising the funds, but in the act of conspiracy and 
combination to do so, and would be complete, though it should 
not be pursued to its consequences. It was clearly therefore, on 
the point of individual injury that the court went. And so in 
the King vs. Gill and Henry, 2 Barnwell and Alderson, 204, the 
defendants were indicted and convicted of a conspiracy by di- 
vers false pretences, and subtile means and divices, to cheat 
several individuals by name. The prosecution in that case, 
could not have been sustained on the ground, as has been sup- 
posed, that it was for a conspiracy to commit an offence, indicta- 
ble of itself under the statute 30 George II. against cheating by 
false pretences; for it is well settled that in an indictment framed 
upon that statute, it is not enough to allege generally, that the 
cheat was effected by divers false pretences, &c. but the particu- 
lar false pretences must be stated, that the party may know 
against what he is to defend himself, and that the court may see 
that there is an indictable offence charged, as there are some pre- 
tences which are not within the statute. 2 T. R. 586. East's 
Crown Law, 837. So in an indictment at common law for 
cheating by false tokens, and so also in an indictment on the 
statute 33 Henry VIII, against cheating by false privy tokens, 
&c 3 Chitty's Criminal Law, 999. 2 Strange 1127. If then the 
conspiracy in that case was only indictable, because it was to 



108 

commit the statutory offence of cheating by false pretences, as 
they would form the principal ingredient of the offence, it would 
have been necessary to set out the particular false pretences, by 
which the cheat was intended to be effected, in order to show 
that it was the statutory offence, which the conspirators intended 
to commit — on the acknowledged principle, that every indictment 
must contain a certain description of the crime of which the de- 
fendant is accused, and a statement of the facts by which it is 
constituted. But it was there ruled by the court, that when 
several persons have once agreed.to cheat a particular individual 
of his money, although they may not at the time, have fixed on 
any particular means for that purpose, the offence of conspiracy 
is complete, and that it was sufficient to state the conspiracy and 
the object of it in the indictment, without setting out the means 
by which it was intended to be accomplished, and per Lord 
Mansfield, in the case of the King vs. Eccles, "they may be per- 
fectly indifferent." It is evident therefore that the indictment 
was not supported on the ground that it was a conspiracy to 
commit an indictable offence, for if it had not been for a conspi- 
racy to cheat, but against an individual, for the actual commission 
of the offence, it would have been bad for the generality of the 
allegation; and the principles of that case embrace every thing 
that is necessary to the support of the indictment against these 
defendants. The case of the King vs. Mawbay and others, 6 T, 
R. 619, was a conspiracy to pervert the course of justice, which 
is of itself an indictable offence. That case has no other bear- 
ing on the present, than as it shows that all indictable conspira- 
cies, are not embraced by the statute S3 Edward I, but that at 
commmon law a conspiracy to do any thing which the law forbids 
is indictable. In the King vs. The Journeymen Tailors of Cam- 
bridge, 8 Mod. 10. recognized in 6 T. R. 636, the defendants 
were indicted at common law, and not on the statute of George, 
for a conspiracy to raise their wages; and it was held, that the 
conspiracy was indictable at common law, though it would have 
been lawful for either of them to raise his wages if he could. So 
in the king vs. Delaval, 3 Burr. 1434, which was a conspiracy to 
place a girl by her own consent in the hands of Delaval for the 
purpose of prostitution. The act of seduction was not of itself 



104 

am indictable offence, but it was the end, the immoral object of 
the conspiracy, which gave it its criminal character. And the 
case of the King vs Lord Grey is of a similar description. In 
1 Hawk. P. C. 190, ch. 72, it is said, "there can be no doubt, that 
all combinations whatsoever, wrongfully to prejudice a third per- 
son, are highly criminal at common law." This is literally 
adopted and transcribed into 1 Burn's Justice 378, and 5 Wilson's 
Works 118. Chitty in his 3 Vol. on Criminal Law, 1139, says, 
<c in a word, all confederacies wrongfully to prejudice another, are 
misdemeanors at common law, whether the intention is to injure 
his property, his person or his character," and in 4 Blk. Com. 
137, (Christian's note 4,) "every confederacy to injure indivi- 
duals, or to do acts which are unlawful, or prejudicial to the com- 
munity, is a conspiracy." The concurring testimony of these 
writers, that, all conspiracies wrongfully to injure a third person 
are indictable offences, is not lightly to be received, though the 
positions laid down, are not assumed as full and definite descrip- 
tions of the crime of conspiracy; yet they go quite far enough for 
all the purposes of tbis prosecution. Indeed the four first were 
only treating of conspiracies levelled against individuals. And 
such is the character of conspiracy, so ramified is it in its nature, 
the object and tendency of it being that from which it derives 
its criminality, that it would be exceedingly difficult to give a 
single specific definition of the offence. But by a course of de- 
cision running through a space of more than four hundred years, 
from the reign of Edward the Hid to the 59th of George the 
Hid, without a single conflicting adjudication, these points are 
clearly settled — 

1st. That the offence of conspiracy is of common law origin, 
and not restricted or abridged by the statute 33 Edward I. 

2d. That a conspiracy to do any act that is criminal per se, is 
an indictable offence at common law, for which it can scarcely be 
necessary to offer any authority. 

3d. That an indictment will lie at common law — 1st. For 
a conspiracy to do an act not illegal, nor punishable if done by 
an individual, but immoral only — as in the King vs. Lord Grey 
and others, and the case of Sir Francis Blake Delaval. 2d. 
For a conspiracy to do an act neither illegal nor immoral in an 



105 

individual, but to effect a purpose, which has a tendency to pre- 
judice the public — as in the King vs. the Journeymen Tailor* of 
Cambridge, for a conspiracy to raise their wages, either of whom 
might legally have done so, and the King vs. Edwards and others. 
3d. For a conspiracy to extort money from another, or to injure 
his reputation by means not indictable if practised by an indivi- 
dual, as by verbal defamation, and that whether it be to charge 
him with an indictable offence or not — as in Timberly and 
Childe; Child vs. North and Timberly; the Queen vs. Armstrong, 
Harrison and others; the Queen vs. Best and others; the King 
vs. Kinnersly and Moore; the Queen vs. Martham Brian; the 
King vs. Parsons and others, and the King vs. Rispal. 4th. For 
a conspiracy to cheat and defraud a third person, accomplished 
by means of an act which would not in law amount to an indict- 
able cheat, if effected by an individual— as in Breerton and 
Townsend; the King vs. Skirrett and others; the Queen vs. Ma- 
carty and Fordenbourgh; the Queen vs. Orbell; the King vs. 
Wheat ly, and the King vs. Lara. 5th. For a malicious conspi- 
racy, to impoverish or ruin a third person in his trade or profes- 
sion —as in the King vs. Cope and others; the King vs. Eccles; 
the King vs. Leigh and others, (Macklin's case.) and the case of 
Clifford vs. Brandon. 6th. For a conspiracy to >iefraud a third 
person by means of an act not per se unlawful, and though no 
person be thereby injured — as in the King vs. Robinson & Tay- 
lor; the King vs. Berenger and others, and the King vs. Edwards 
and others. 7th. For a bare conspiracy to cheat or defraud a 
third person, though the means of effecting it should not be de- 
termined on at the time — as in the King vs. Gill and Henry. 8th. 
That a conspiracy is a substantive offence, and punishable at com- 
mon law, though nothing be done in execution of it — as in the 
Book of Assizes, ch. 44; the Poulterers' case; the King vs. Ed- 
wards and others; the King vs. Eccles; the King vs. Berenger 
and others, and the King vs. Gill and Henry; and all the author- 
ities that the conspiracy is the gist of the offence. And 9th. 
That in a prosecution for a conspiracy, it is sufficient to state 
in the indictment, the conspiracy and the object of it; and that 
the means by which it was intended to be accomplished need 
not be set out, being only matters of evidence to prove the 
14 



106 

charge, and not the crime itself, and may be perfectly indif- 
ferent — as in the King vs. Eccles, and the King vs. Gill and 
Henry. 

From all which it results, that every conspiracy to do an un- 
lawful act, or to do a lawful act for an illegal, fraudulent, mali- 
cious or corrupt purpose, or for a purpose which has a tendency 
to prejudice the public in general, is at common law an indicta- 
ble offence, though nothing be done in execution of it, and no 
matter by what means the conspiracy was intended to be effect- 
ed; which may be perfectly indifferent, and makes no ingredient 
of the crime, and therefore need not be stated in the indictment. 
In 1 Tremaine's P. C. 82, 83, there is an information against 
Turner and others, for a conspiracy to destroy the reputation of 
one George Green, and falsely to charge him with adultery with 
the wife of one of the conspirators, for the purpose of extorting 
money from him. In 86, against Record and others, for a cheat 
practised on Lady Dorothea Seymour, in prevailing on her by 
means of a falsehood, to advance large sums of money to them. 
In 91, against Wilcox and others, for cheating by conspiracy 
one John Dutton of a quantity of cloth, under pretence of buy- 
ing them. In 94, against Taydler and others, for a cheat by con- 
spiracy, in drawing an absolute conveyance to themselves of the 
estates of two women, and persuading them to execute it, pre- 
tending it was only in trust for the women, &c. And in 97, 
against Allibone and others, for cheating by conspiracy, one Mil- 
liard, in obtaining divers bonds from him for the payment of mo- 
ney to themselves and others, as a consideration for procuring a 
marriage between him and an indigent woman whom they re- 
presented as being rich. In neither of those cases, could an 
indictment have been sustained for the same injury practised by 
an individual, without the aid of conspiracy or combination; and 
as Tremaine gives the terms, the reigns, and the names of the 
respective parties, there can be little doubt, that they are pre- 
cedents of information in adjudicated cases, and that they 
were held to be good; and they go far to show how the common 
law was understood in England in the reigns of Charles and 
James the lid And the law of conspiracy, as settled by the 
uniform tenor of the decisions of the courts in England, has 



107 

been recognized and adopted as the common law, by the courts 
of several of the sister states; as in the Commonwealth vs. 
Ward and others, 1 Mass. Rep. 473. The Commonwealth vs. 
Judd and others, 2 Mass. Rep. 329; and the Commonwealth vs. 
Tibbitts and Tibbitts, ibid 5S6; and the cases of the Journey- 
men Cordwainers in New-York and Pennsylvania; and also in a 
similar case in this state, by the court of oyer and terminer, &c. 
for Baltimore county, which has it is believed, been entirely ac- 
quiesced in. In 2 East's C. L. title Cheat — cheats by conspira- 
cy are treated of, as being on the same footing with cheats ef- 
fected by the use of public false tokens, as false weights and 
measures. Chitty in his 3 vol. title Conspiracy, after speaking 
of indictable conspiracies levelled at individuals, says, fc 'but the 
object of conspiracy, is not confined to an immediate wrong to 
particular individuals, it may be to injure public trade, to affect 
public health, to violate public police, to insult public justice, 
or to do any act in itself illegal." Thus taking a clear distinc- 
tion between indictable combinations to injure individuals, and 
such as have for their object an injury to the public at large, or 
the commission of acts which are in themselves illegal. And 
in page 1140 he says, "that to constitute a conspiracy, it is not 
necessary that the act intended should be in itself illegal, or 
even immoral; that it should affect the public at large; or that it 
should be accomplished by false pretences." Conspiracies are 
odious in law, and are always taken mala parte, and properly. 
In the King vs, Rispal, it was said by Lord Mansfield in deliver- 
ing the opinion of the court, that "they tended to a breach of 
the peace, as much as cheats or libels." That is the only reason 
assigned in the books why libels are punishable by indictment; 
and whether they have in fact a more direct tendency to a breach 
of the peace, than verbal slanders, which are not per se so pun- 
ishable, it is now too late to inquire — the law is settled, whether 
the reason be good or bad. There is however a greater maligni- 
ty of spirit displayed, and a deeper and more lasting mischief 
contemplated by a deliberately written libel, than by a mere ver- 
bal slander, which is often repented of almost as soon as it is 
uttered. Libels therefore furnish evidence of a disposition more 
dangerous to the social order, than verbal slanders, against the; 



108 

effect of which, the law has interposed itself, as a necessary safe- 
guard. So at common law, a cheat effected by public false to- 
kens, as "false weights and measures," is punished criminaliter, 
not because the party cheated, is more injured in that way, than 
by a mere private cheat accomplished by an individual in any 
other manner, which is not indictable; but because it is that, 
against which ordinary care and prudence are not sufficient to 
guard, and the use of which, evinces a disposition to practise 
upon the whole community. And for the same reason, fraudu- 
lent, false or malicious conspiracies to cheat or otherwise injure 
a third person, are indictable offences; for. that ordinary care 
and prudence, which would be a sufficient guard against the evil 
designs of an individual, furnish no protection ^gainst the ma* 
chinations of a band of conspirators; The King vs. Turner and 
others, 13 East 228, has been much relied upon by the counsel* 
for the defendants in error, but the case itself is not at all in hos- 
tility with this principle, or with any of the adjudications to 
which we have had occasion to advert. It was an agreement 
only, (in the words of Lord Eilenborough by whom it was decid- 
ed) "to go and sport upon another's ground;" not tinctured ei- 
ther with malice, falsehood or fraud. And an agreement to 
commit a civil trespass, (for every unauthorised entry upon the 
possessions of another, though it only be for the purpose of in- 
nocent amusement, is in law a trespass) may not, according to 
circumstances, amount to an indictable offence. But fraud, 
falsehood and malice, strike at the very root of the social order, 
as the well being of a community greatly depends on the hones- 
ty, truth, and properly regulated passions of those who com- 
pose it; and therefore it is necessary, that the law should punish 
them whenever they assume a shape, against the effect of which 
ordinary care and prudence are not sufficient to guard. 

There is nothing in the objection, that to punish a conspiracy 
where the end is not accomplished, would be to punish a mere 
unexecuted intention. It is not the bare intention, that the law 
punishes, but the act of conspiring, which is made a substan- 
tive offence, by the nature of the object intended to be effected. 
And in that respect, conspiracies are analogous to unlawful as- 
semblies. An unlawful assembly, is the assembling of three or 



109 

more together to do an unlawful act, as to pull clown enclosures, 
and departing without doing it, or making any motion towards it. 
In that case it is not the bare unexecuted intention which the 
law punishes, but it is the act of meeting, connected with the 
object of that meeting, which constitutes the offence; and for 
that act of meeting alone* though it should be to do, what if -ac- 
tually done by one, as the pulling down of another's enclosures, 
(which would be but a civil trespass,) the parties are liable to be 
punished by fine and imprisonment. And why should the law 
favour the act of conspiring together, falsely to injure the repu- 
tation of another, maliciously to ruin him in his occupation, or 
fraudulently to cheat him of his property, (no matter by what 
means,) and yet punish the act of meeting together to pull down 
another's fence, without making any motion towards it? 

But it is contended, that if our ancestors brought with them 
the common law of the mother country, or any part of it, it was 
the common law so far only as it had been established by judicial 
precedents, at the time of their emigration, and not as it has since 
been expanded in England by judicial decisions. That our an- 
cestors did bring with them the laws of the mother country, so 
far at least as they were applicable to their situation, and the con- 
dition of an infant colony, cannot be seriously questioned. The 
rule that "in conquered or ceded countries that have laws of 
their own, those laws continue in force, until actually altered," 
&c. is for the benefit and convenience of the conquered, who 
submit to the government of the conquerors, or in the case of 
cession of the people, who by treaty submit to the government 
of those to whom their country is ceded, and was not applicable 
to the condition of our ancestors, as the Indians did not submit 
to their government, but withdrew themselves from the territory 
they acquired, They were therefore in the predicament of a 
people discovering and planting an uninhabited country; and as 
they brought with them all the rights and privileges of native 
Englishmen, they consequently brought with them also, as their 
birthright, all the laws of England, which were necessay to the 
preservation and protection of those rights and privileges. And 
it would be difficult to show, that the law of conspiracy was not, 
at the time of their emigration, quite as necessary to them here 



110 

in their new. and colonial condition as it was in England, unless 
it can also be shown, that there was less necessity here, than 
there, for the preservation of life, liberty, reputation and property, 
or protection against falsehood, malice and fraud. If then they 
did bring with them the common law of conspiracy, which is 
assumed as undeniable, (though it may have existed potentially 
only,) they brought it as it is now settled and known in England; 
for what it is now, it was then, if any reliance can be had on 
ancient authorities; and it is to judicial decisions J that we are to 
look, not for the common law itself, which is no where to be found* 
but for the evidences of it. It appears, as has been seen by a 
note of a case in the Book of Assizes, 27th Edward III, that an 
indictment was sustained at common law for a conspiracy, though 
nothing was done in execution of it. The same principal is re- 
cognized and adopted in 9 Coke's Rep, 56, (The Poulterers' case,) 
in its fullest extent; and that is the great principle running 
through the cases so much objected to in argument, that conspi- 
racies are substantive punishable offences, though they be not 
executed; and the rest, that it is sufficient to state in the indict- 
ment the consj}iracy and the object of it, that the means by which 
it was intended to be effected, are but matters of evidence to 
prove the charge, and no part of the crime itself, and may be 
perfectly indifferent, and need not therefore be set out, are but 
consequences. And in the case of Breerton and townsend, Noy's 
Rep. 1C3, (12 James I.) and indictment was held to lie, as has 
been seen, for a conspiracy to defraud another by means of an 
act, which if it had been effected by an individual, would not 
have been indictable. The case in Noy, in which the parties were 
punished by fine, also shows, that the villenous judgment was 
not given in all cases of conspiracy, but that there were at com- 
mon law, different degrees of punishment, and consequently of 
crime; and in 1 Hawk. P. C. 193, ch. 72, S. 9, it is said, that it 
has never been settled to be the proper judgment upon any con- 
viction of conspiracy, except such as threatened the life of the 
party, which obviates any argument drawn from the villenous 
judgment, against there being any other conspiracies at common 
law than those enumerated in the statute 33 Edward I. These 
cases were before the colonization, the charter being in the eighth 



Ill 

year of the reign of Charles the 1st. and they furnish the leading 
principles of the doctrine of conspiracy, of which the subsequent 
decisions are but practical applications, and must be received as 
expositions of the law as it before existed, and not as creating a 
new law, or altering the old one, which could only be done by 
legislative enactment; and cannot be assimilated to occassional 
alterations or changes in the practice of courts, in relation to the 
forms of proceeding, which are only creatures of courts, and 
often go on mere fiction. And it is a mistake to suppose, that 
they are expansions of the common law, which is a system of 
principles not capable of expansion; but always existing, and 
attaching to whatever particular matter or circumstances may 
arise and come within the one or the other of them; not that this 
or that combination, is by the common law in terms declared to 
be an indictable conspiracy, but that it falls within those princi- 
ples of the common law, which have for their object the preserv- 
ation of the social order, in the punishing such combinations as 
are calculated to threaten its well being. Precedents therefore 
do not constitute the common law, but serve only to illustrate 
principles. And if there were no other adjudications on the 
subject to be found, the judicial decisions since the colonization, 
furnish conclusive evidence, not only of what is now understood 
to be the law of conspiracy in England, so far as those decisions 
go, but of what were always the principles on which that law 
rests. And if the political connection between this and the 
mother country had never been dissolved, the expression of a 
doubt would not now be hazarded on the question, whether the 
same law was in force here. And unlike a positive or statute 
law; the occasion or necessity for which may long since have 
passed away, if there has been no necessity before, for instituting 
a prosecution for conspiracy, no argument can be drawn from the 
non user; for resting on principles, which cannot become obsolete, 
it has always potentially existed, to be applied as occasion should 
arise. If there had never been in Marryland, since the original 
settlement of the colony by our ancestors, a prosecution for 
murder, arson, assault and batteiy, libel, with many other com- 
mon law offences, and consequently no judicial adoption of either 
of those branches of the common law, could it therefore be con- 



112 

tended, that there was now no law in the state for the punish- 
ment of such offences? The third section of the Bill of Rights, 
which declares "that the inhabitants of Maryland are entitled to the 
common law of England, and the trial by jury according to the 
course of that law, and to the benefit of such of the English 
statutes, as existed at the time of their first emigration, and 
which by experience, have been found applicable to their local 
and other circumstances, and of such others as have been since 
made in England or Great Britain, and have been introduced, 
used and practised by the courts of law or equity," has no refer- 
ence to adjudications in England anterior to the colonization, or 
to judicial adoptions here, of any part of the common law, during 
the continuance of the colonial government, but to the common 
law in mass, as it existed here, either potentially, or practically, 
and as it prevailed in England at that time, except such portions 
of it, as are inconsistent with the spirit of that instrument, and 
the nature of our new political institutions. And surely it can- 
not be inconsistent with, or repugnant to the spirit and princi- 
ples of republican institutions, whose strength lies in the virtue 
and integrity of the citizen, to correct the morals and protect 
the reputation, rights and property of individuals, by punishing 
corrupt combinations, falsely to rob another of his reputation, 
maliciously to ruin him in his business, or fraudulently to cheat 
him of his property. If it is, the law of libel, and for punishing 
cheats effected by public false tokens, should also be rejected; 
for the one is not more inconsistent with the personal liberty of 
the citizen than the other, or at all more necessary to the preserv- 
ation of the social order, and they all rest upon the same princi- 
ple. And that clause in the third section of the Bill of Rights, 
which declares the inhabitants of Maryland to be entitled to the 
benefit of such British statutes made since the emigration, as had 
been introduced, used and practised by the courts of law or 
equity, and thus virtually inhibits the use of all such as had not 
been so introduced, furnishes a clear exposition of the whole 
section, and shows, that it was not the intention of the framers 
of that instrument, to exclude any part of the common law, 
merely because it had not been introduced and used in the courts 
here, and strongly implies, that there were portions of that 



113 

valuable system, which had not been actually practised upon. 
And the judicial proceedings of our courts furnish no evidence 
of any prosecution before the revolution, for a cheat effected by 
public false tokens; and yet it is not pretended, that from the non 
user, it is not now an indictable offence. 

It is not necessary, as has been contended on the part of the 
defendants in error, that every one should in fact know what the 
law is, before he can be punished for what the law forbids. Such 
a doctrine would be fraught with the most mischievous conse- 
quences to society: it is enough that the offence was known to 
the law before, and if it be malum in se, there is an inward mon- 
itor, always present, to warn, advise and instruct. Nor is it 
any argument against the law of conspiracy, as contended for on 
the part of the prosecution, that under the English decisions, 
the act of conspiring, is not required to be proved by positive 
testimony, but may be inferred by the jury from all the circum- 
stances of the case. It has nothing to do with the question of 
what is, or is not an indictable conspiracy; and if it be an objec- 
tion at all, it is one that arises upon the law of evidence, and is 
equally applicable to every description of conspiracy. But we 
cannot perceive what there is in it to quarrel with. It is not con- 
fined to the offence of conspiracy — Murder, which reaches the 
life of the offender, and various other crimes, may be proved by 
circumstantial evidence; and there does not seem to be any thing 
in the crime of conspiracy, that should exempt it from being 
proved by the same species of evidence. On the contrary, as 
conspiracies from their very nature, are usually entered into in 
secret, and are consequently difficult to be reached by positive 
testimony, it would appear to be peculiarly necessary and pro- 
per to permit them to be inferred from circumstances, otherwise 
the most dangerous and injurious conspiracies would often go un- 
punished. I have endeavoured to avoid bringing any thing into 
this case, which does not strictly belong to it, or assuming any 
principle that is not well settled. The indictment has two counts, 
the first charges the defendants with an executed conspiracy } 
falsely, fraudulently and unlawfully, by wrongful and indirect 
means to cheat, defraud and impoverish the President, Directors 
and Company of the Bank of the United States; and the second. 
15 



114 

charges them with a conspiracy only, falsely, fraudulently and 
unlawfully, by wrongful and indirect means, to cheat, defraud 
and impoverish the President, Directors and Company of the 
Bank of the United States. James A. Buchanan, one of the de- 
fendants, was the President of the Office of Discount and De- 
posit of the mother bank, duly established in Baltimore; James 
JF.M'Culloh, another of the defendants, was the Cashier of that 
office, and George Williams, the other defendant, was a direct- 
or of the mother bank in the city of Philadelphia; and it has 
been contended, that as an improper use, or embezzlement of 
the funds of the bank, by either the President or Cashier of the 
office, would in law be only a breach of trust, a combination to 
effect the same purpose cannot amount to an indictable offence* 
But however ingeniously urged, there does not appear to be any 
thing in the argument, when stripped of the dazzling attire in 
which it was clothed. Seeing, as has been shown, that to consti- 
tute an indictable conspiracy, it is not necessary that the act 
conspired to be done, should if effected by an individual, be such, 
as would perse amount to an indictable offence. It seems there- 
fore to be perfectly clear, both on principle and authority, that 
the matter charged in each count in the indictment, constitutes a 
punishable conspiracy at common law, and that, that portion of 
the common law is in force in this state. 

The only question remaining to be examined, that is, whether 
under the constitution and laws of the United States, the county 
court of Harford had jurisdiction of the offence, in this particu- 
lar case, the Bank of the United States, being chartered by an 
act of Congress, requires but little to be said, and will be dis- 
posed of in a few words. A conspiracy to cheat or defraud the 
bank, is not declared to be an offence against the United States, 
by any act of Congress, and in the case of the United States vs. 
Hudson and Goodwin, 7 Cranch 32, it was decided by the Su- 
preme Court, that the courts of the United States had no com- 
mon law jurisdiction in criminal cases. The authority of which 
case is recognized in the case of the United States vs. Coolidge 
and others, I VYheaton415, and until it shall be overruled by 
the same tribunal, the principle must be considered as settled. 
The matter therefore charged in the indictment is not an offence 



115 

against the United States, nor cognizable in any of their courts; 
but a common lav/ offence against the slate of Maryland — the act 
of Congress creating the bank, and the establishment of the of- 
fice of discount and deposit in the city of Baltimore within the 
territorial jurisdiction of the state, furnishing only the occasion 
for the offence, by bringing into existence the thing, upon which 
the fraud is charged to have been committed. And as the pre- 
viously vested jurisdiction of the state, cannot be supposed 
to be taken away, by the mere potential right of Congress (sup- 
posing it to exist) to make a conspiracy to cheat the bank, an of- 
fence against the United States, and to give exclusive jurisdic- 
tion thereof to the United States courts, without any exercise 
of that right, the original common law jurisdiction of the courts 
of the state, in relation to this subject, remains as it was before 
the adoption of the Federal Constitution, and will so continue 
to remain, until that right shall be exercised by Congress to its 
exclusion. Whether a concurrent jurisdiction would be de- 
nied to the courts of the state, if Congress had in fact vested 
jurisdiction of this matter in the courts of the United States, it 
is not now necessary to inquire, the exclusive jurisdiction being 
in the courts of the state. It will be time enough to examine 
that question when it shall be regularly presented to us. 

It has been urged on the part of the defendants in error, as an 
objection to the jurisdiction of the courts of the state, in such a 
case as this, that the principle would be dangerous to the well 
being of the bank, as it might lead to the passing of laws by the 
state legislature, calculated to destroy the institution, under pre- 
tence of protecting its interests. It may be admitted, that the 
legislature of t\\Q state has no right to pass laws calculated to 
control or impede the operations of the bank. Butlt is difficult 
to imagine, how a general power in the judicial tribunals of the 
state, to punish an offence against the state, can be considered as 
an unconstitutional interference with the concerns of the bank 
of the United States, or as in any manner endangering its se<- 
curity, only because its officers happen to be the objects of the pro- 
secution, and the offence is charged to be, to the prejudice of 
that institution; which for the purpose of the prosecution is con- 
sidered as an individual.- 



416 

Judgment reversed, and Procedendo awarded to the Cotm< 
ty Court of Harford. 



(Cj 3 This opinion will be found, on a comparison with that delivered 
by Mr. Dorsey in the Court below, to concur with and support it through- 
out. Thus the five Judges of whom the Court of Appeals then consist 
ed, were unanimous in their decision. 



CORRECTIONS AND ERRATUM. 

Preface. Page xvii. line 31, for 'to' read 'from.* 
Work. 20 15, after * deception' expunge 'by." 

38 1, for '§156,600* read '§155,600,' 

58 32, for 'intrusted* read 'interested.' 

60 37, for ' shares' read ' dollars ' 

61 7, before 'Johnson' at the beginning* of the line, 

insert ' R. M.' 
9, for ' as' read ' in.' 
32, for 'shares' read 'dollars.* 
37, strike out 'par.' 

62 1, for ' 7000' read ' 700.' 

6, for ' shares' read ' dollars.' 
17, strike out ' par.' 
23, 26, 27, 28, 29, for ' shares' read ' dollars.' 

68 4, 6, 8, 10, 13, 17, 33, for ' 1817' read '1818/ 

69 3, 12, 21, 26, 28, 30, for ' 1817, read ' 1818.' 

70 6, 14, 17, 18, 21, 23, 24, for ' 1817' read '1818." 

71 10, 12, 16, 22, 23, 25, for ' 1817' read '1818.' 
73 36, for 'shares' read 'dollars.' 

78 1, after '300' insert 'and.' 

2, strike out ' bank.' 
83 3, for '§159,833 34' read '§169,833 34.* 

89 19, for ' R. S. Colt' read 'R. L. Colt.' 

93 27, for '20,845' read '20,848.' 

96 14, after ' 31,940' insert 'shares.* 

103 22, for 'pavers' read 'payees.' 

104 23, for '§65,000' read '§75,000.' 

35, for 'dis' read 'dollars,' for '23rd Jan. 1817' read 

'23rd June 1817.' 
106 19, insert 'be' between ' to and made.' 

138 22, for ' 55,000' read ' 146,080.' 

140 34, for Art. ' 30» read Art. ' 31.' 

146 26, for 'to Smith by the Mechanics' Bank' read 

' by Smith to the Mechanics* Bank.* 
180 5, for ' August 16' read 'August 26,' 

182 31, for ' delaying' read ' delay.' 

187 30, for 'any* read 'very.' 

190 10, for ' interests' read ' interest.' 

193 13, for ' in March of that year, read ' of March in 

that year.' 
195 21 for * prospects' read 'prospect.' 

30, for 'principal* read 'principle.* 

197 24, for 'mint' read 'merit,' 
25, for 'coin' read 'gain.' 
40, for ' sound' read ' sacred.' 

1 98 5, for * gilt' read ' guilt.' 

23, read thus ' The excuse founded on motives and 
objects may be pleaded before the throne of 
grace. Even in the exercise of that human pow- 
er, &c. &c* 

30, for 'friend' read 'friends.' 
224 19, for 'usual' read 'such.' 

35, for 'the* read 'their.* 



CORRECTIONS AND ERRATUM. 

Page 229 Line 20, expunge ' it' before 'is/ 

38, insert 'and June" between 'April' and ' 1817,' 
so as to read in April and June 1817. 
230 26, after 'endeavoured' insert 'to shew.* 

251 1, for ' Brown' read ' Bowie.' 

260 20, for 'Purchased' read 'purchase,' 

263 39, for 'fraudalent' read 'fraudulent.' 

264 8, for ' fraudalent' read ' fraudulent. 
Appendix. 40 6, for 'curiem' read 'curiam.' 

36, for ' sid' read ' sed' and for ' allocation' read ' al- 
location.' 
48 36, for 'considered' read 'contended.' 

50 33, for ' court' read ' course.' 

70 24, for 'judiciously' read 'judicially.' 

72 28, for ' sentiments' read ' sentiment.' 

90 21, for 'its' read 'it' 

91 15, for 'of read 'by.' 

94 1, insert 'in' between 'and* and ''she.* 

15, insert ' in the bastardy cases' between e prose- 

cutions' and ' were.* 

95 2, for 'an' read 'one.* 
8, for 'has' read 'is.' 

16, for 'indictment' read 'indictments.' 

20, insert 'of between 'convicted' and 'for.' 
27, between ' History' and ' it,' insert, ' These re- 
marks equally apply to the case of the King 
vs Kennersly and Moore , and 

101 8, between 'right' and 'could,' insert 'to Hol- 

land's estate.' 

35, between ' reason' and ' the' insert 'only.' 

36, at the end of the line insert ' as supposed in ar- 

gument.' 

102 1, between 'individual' and ' for* insert ' and that 

the case fell within one of those classes of con- 
spiracies.' 
35, between 'false' and 'tokens* insert 'public' 
104 24, 25, for ' decision' read ' decisions.' 

107 11, for ' public false tokens' read ' false public to- 

kens.' 

108 2, same correction. 

109 7, 8, expunge ' as the pulling down of another's 

enclosures which.' 

110 14, for ' principal' read ' principle.' 
25, for ' and' read ' an.' 

112 25, for 'public false tokens' read ' false public to- 

kens.* 

113 5, same correction. 



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